Ng�i Tamahaua Hap� Committee v Heritage New Zealand Pouhere Taonga

[2021] NZHC 2442

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2021-463-30

[2021] NZHC 2442

UNDER

Section 299 of the Resource Management Act 1991

AND IN THE MATTER

of an appeal against a decision to decline waivers to appeal out of time against granting Archaeological Authorities 2020/688, 2021/128 and 2021/202

BETWEEN

NGĀI TAMAHAUA HAPŪ COMMITTEE

Appellant

AND

HERITAGE NEW ZEALAND POUHERE TAONGA

Respondent

ŌPŌTIKI DISTRICT COUNCIL

Authority holder

Hearing:

On the papers

Appearances:

The appellant in person, by its deputy chair, T Herewini V N Morrison-Shaw for the respondent

M H Hill for the interested party

Judgment:

17 September 2021

JUDGMENT OF JAGOSE J

[Costs]

Solicitors:

This judgment was delivered by me on 17 September 2021at 10.00am.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Atkins Holm Majurey, Auckland Cooney Lees Morgan, Tauranga

Copy to:

The appellant

NGĀI TAMAHAUA HAPŪ COMMITTEE v HERITAGE NEW ZEALAND POUHERE TAONGA - Costs [2021] NZHC 2442 [17 September 2021]

[1]                 My 6 August 2021 judgment dismissed the Committee’s appeal and reserved costs, observing:1

In my preliminary view, as the unsuccessful party, the Committee should pay 2B costs to each the Council and HNZPT, as the parties agreed the proceeding should be categorised for costs purposes.

[2]                 It should be unnecessary to recount the general principles that apply to determination of costs, prime among them being the party who fails with respect to  a proceeding should pay costs to the party who succeeds; costs are payable according to scale applied by reference to “each step reasonably required in relation to the proceeding”; and “so far as possible the determination of costs should be predictable and expeditious”.2

[3]                 HNZPT does not seek costs. The Council seeks 2B costs of “$12,786.50 (GST inclusive)”. The Committee asserts costs should be refused or reduced, as “the proceeding concerned a matter of public interest, and the party opposing costs acted reasonably in the conduct of the proceeding”; and “the party claiming costs has contributed unnecessarily to the time or expense of the proceeding or step in it by … taking or pursuing an unnecessary step or an argument that lacks merit”.3

[4]                 For the reasons I explained in my substantive judgment,4 any matter of public interest in this proceeding ceased when no timely appeal was filed against the grants of archaeological authorities. Thereafter, this proceeding was in the Committee’s private interest, in both seeking the Environment Court’s waiver and in appealing its refusal. Only if successful on either may public interest have been restored.

[5]                 The Committee argues the Council’s opposition is its unnecessary contribution of “a chilling effect to discourage recourse to the courts”, exemplified by its “demand” for security on appeal.5 The argument illustrates the Committee’s misapprehension: on passage of the times for lodging appeals, the Committee lost any right of recourse

1      Ngāi Tamahaua Hapū Committee v Heritage New Zealand Pouhere Taonga [2021] NZHC 2033 at [15]–[16].

2      High Court Rules 2016, r 14.2(1)(a), (c) and (g).

3      Rule 14.7(e) and (f)(ii).

4      Ngāi Tamahaua Hapū Committee v Heritage New Zealand Pouhere Taonga, above n 1, at [5]–[6].

5      But security for appeal “must” be fixed; the Committee did not pursue its waiver either: High Court Rules, r 20.13(2).

to the courts against the grant of archaeological authorities. Unsuccessful pursuit of its private interest should not be at the Council’s expense (which necessarily is funded by ratepayers, providing a countervailing public interest).

[6]                 I do not understand the Council’s claim for 2B costs “(GST inclusive)”. Assuming the Council to be GST-registered, GST is not recoverable.6 But nothing in the 2B scale, which is all the Council claims, has a GST component.

[7]                 I order the Committee to pay the Council costs in the sum of $12,786.50. The sum paid as security may be released to the Council in partial satisfaction of that liability.

—Jagose J

6      New Zealand Venue and Event Management Ltd v Worldwide NZ LLC [2016] NZCA 282, (2016) 27 NZTC 22-058 at [17].