Southern Cross Healthcare Limited v Eden Epsom Residential Protection Society Incorporated

[2023] NZHC 1560

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2022-404-725

[2023] NZHC 1560

UNDER

the Resource Management Act 1991

IN THE MATTER OF

An appeal under s 299 of the Resource Management Act 1991

BETWEEN

SOUTHERN CROSS HEALTHCARE LIMITED

Appellant

AND

EDEN EPSOM RESIDENTIAL PROTECTION SOCIETY INCORPORATED

First Respondent

AUCKLAND COUNCIL

Second Respondent

KĀINGA ORA – HOMES AND COMMUNITIES

Section 301 Party

TŪPUNA MAUNGA O TĀMAKI MAKAURAU AUTHORITY

Section 301 Party

On the papers

Counsel:

B Tree for the appellant

M Savage for the first respondent
D Hartley and W Randal for the second respondent

Judgment:

21 June 2023

COSTS JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 21 June 2023 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

SOUTHERN CROSS HEALTHCARE LIMITED v EDEN EPSOM RESIDENTIAL PROTECTION SOCIETY INCORPORATED [2023] NZHC 1560 [21 June 2023]

[1]    my judgment dated 27 April 2023, I allowed the appeal of Southern Cross Healthcare Ltd (Southern Cross) and held it was entitled to costs. The parties have been unable to agree costs.

[2]    Southern Cross seeks costs against the first and second respondents but not against the s 301 parties. Southern Cross calculates costs on a 2B basis as $19,956.50 and claims disbursements of $3,660. It therefore seeks a total of $23,616.50. The respondents agree with the 2B basis and with Southern Cross’s calculation, but submit a reduction in costs is warranted under r 14.7 of the High Court Rules 2016.

[3]    The respondents submit the proceeding concerned a matter of public interest and they acted reasonably, so that r 14.7(e) is engaged. For a proceeding to concern  a matter of public interest, the proceeding must concern a matter of genuine public interest, have merit and be of general importance beyond the interests of the particular litigants.1   A proceeding arising out of a matter of private interest does not become   a proceeding concerning a matter of public interest merely because the public benefits in some way from the determination of the proceeding (such as by settling the meaning of legislation or some other instrument).2

[4]    Here, the appeal was concerned with a private plan change under which Southern Cross sought to rezone four properties it owns in Epsom. This essentially affected Southern Cross’s private interest in those properties. The private interests  of the members of the first respondent in their own properties was also affected. But the proceeding did not concern a matter of public interest.

[5]    The respondents also submit that costs should be reduced under r 14.7(d) because, although Southern Cross succeeded overall, it failed in relation to issues that significantly increased the respondents’ costs. Southern Cross did fail on five of the nine issues that it raised, and it largely failed on a sixth issue.   The three issues      on which Southern Cross enjoyed complete success were the most important issues raised on the appeal and received the most attention in written and oral submissions.

1      Taylor v District Court at North Shore (No 2) HC Auckland CIV-2009-404-2350, 13 October 2010 at [9].

2      Wong v Registrar of the Auckland High Court (2008) 19 PRNZ 32 (HC) at [18]; Belgiorno-Nettis v Auckland Council [2018] NZHC 926 at [16].

Nonetheless, I consider that its pursuit of the issues on which it failed would have caused an increase in the respondents’ costs that crossed the “significance” threshold in r 14.7(e).

[6]    The first respondent also submits that Southern Cross pursued arguments that lacked merit, engaging r 14.7(f)(ii). I do not accept that submission, which (as is often the case in costs disputes) treats failure as the equivalent of a lack of merit.

[7]    Having found that r 14.7(d) is engaged, I have a  discretion to reduce costs.    I will exercise that discretion here.  Southern Cross could and should have pursued   a more focussed appeal. That said, I consider that the appropriate reduction is no more than 20 per cent of the costs that would otherwise have been awarded. That reflects my assessment of the additional costs the respondents incurred from having to deal with the issues on which Southern Cross failed. There is no basis for applying that reduction to the disbursements that are otherwise to be awarded.

[8]    Accordingly, I award Southern Cross costs of $15,965.20 and disbursements of $3,660, a total of $19,625.20, against the first and second respondents.

Campbell J