Baker v Waimakuku Whanau Trust Board Incorporated [2014] NZHC 255 (24 February 2014)

Last Updated: 19 March 2014

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CIV-2010-441-000581 [2014] NZHC 255

BETWEEN EDWARD HENRY BAKER and WHAKAWE CHARLES RAMEKA as trustees of THE THOMAS BAKER WHANAU TRUST

Applicants

AND WAIMAKUKU WHANAU TRUST BOARD INCORPORATED Respondent

On papers

Judgment: 24 February 2014

JUDGMENT OF DOBSON J (Costs for the Amicus)

[1] I have now had an opportunity to consider the various memoranda in relation to the application by the amicus for costs orders, as directed in [23] to [28] of my supplementary judgment of 29 October 2013. These comprise the memorandum of the amicus dated 4 November 2013, the memorandum of counsel for the applicants dated 15 November 2013 and the submissions of counsel for the respondent dated

9 December 2013. I regret that other commitments have prevented my addressing the matter before now.

[2] The amicus seeks orders under s 99A(1)(b) of the Judicature Act 1908. That section provides:

99A Costs where intervener or counsel assisting Court appears

(1) Where the Attorney-General or the Solicitor-General or any other person appears in any civil proceedings or in any proceedings on any appeal and argues any question of law or of fact arising in the proceedings, the Court may, subject to the provisions of any other Act, make such order as it thinks just—

BAKER v WAIMAKUKU WHANAU TRUST BOARD INC [2014] NZHC 255 [24 February 2014]

...

(b) As to the payment by any party to the proceedings or out of public funds of the costs incurred by any other person in so doing; or

...

[3] The amicus has suggested that different considerations apply in relation to costs incurred on interlocutory steps, and those incurred in relation to the substantive hearing.

[4] The applicant trustees had previously resisted any basis for a costs order against the fund comprising the assets of the applicants’ trust. The grounds included that the Court had recognised the appropriateness of assistance from an amicus, given the potentially diverse interests of some 380 beneficiaries in 10 branches of the extended family involved. Further, given the terms on which the Crown had reached a settlement of the relevant Waitangi Tribunal claims, the Crown ought itself to recognise an on-going responsibility reflected in the provision of services such as those provided by the amicus.

[5] In the event that either of the parties ought to contribute, it was submitted for the applicants that such burden should fall on the respondent because the scope of matters raised in the proceedings had been substantially and irrelevantly protracted by initiatives on behalf of the respondent. There was constructive dialogue between the applicants and the amicus in resolving the proceedings, and there is no justification for requiring the involvement of the amicus to be at the expense of the fund.

[6] The respondent also opposed any order that it should be liable to contribute to the costs incurred by the amicus. Mr Nee Harland’s submissions in response to the memoranda filed by the amicus and on behalf of the applicants iterated many of the on-going and sadly unresolved arguments between the protagonists involved in control of the relevant trust fund. I have not found the reiteration of any of those complaints as against the applicants to be of assistance in determining the appropriate outcome in relation to any liability the respondent should have to contribute to the costs incurred by the amicus.

[7] Mr Nee Harland seized upon the recognition in my 27 September 2013 judgment to the effect that the respondent’s influence on some of the material changes made to the trust deed could be treated as the respondent having had a measure of success in the proceedings.¹ What Mr Nee Harland did not address was the immediately following observation:

[122] However, that consideration is outweighed by the extent to which Mr Nee Harland’s initiatives needlessly prolonged the proceedings. Mr Nee Harland used the proceedings for an extensive number of collateral attacks, and raised more points without merit than those that did have any relevant merit.

[8] I am absolutely satisfied that meritless or irrelevant matters pursued on behalf of the respondent substantially increased the work required by the amicus. It is appropriate to consider the cost consequences separately, in relation to the interlocutory costs incurred and those in relation to the substantive determination.

[9] The detail of the costs incurred by Mr Soper includes 38 hours on interlocutory steps, at a cost of $8,712. Had the proceedings been confined to the issues relevant to the terms for an expanded trust deed in relation to this fund, those steps would not have been required. It is appropriate that an order be made for those costs to be met by the respondent.

[10] As to the substantive hearing, the total time involved of 155 hours appears justifiable. That work included seeking views by way of public notice from potential beneficiaries, attending the hui in Taupö that was convened eventually by the then trustees, and the more conventional legal analysis of the terms of the proposed trust deed, together with preparation and presentation of submissions. The extent of that work will have been increased somewhat by the tactical initiatives pursued on behalf of the respondent, but the core of it was provision of the classic valuable assistance that the Court looks to an amicus for. I am satisfied that 25 per cent of that cost should be borne by the respondent, with the balance being borne by the Crown.

[11] I would make the same apportionment in relation to the total disbursements of $3,682.93 that have been incurred.

¹ At [121].

[12] In summary therefore, the costs order under s 99A(1)(b) of the Judicature Act

in respect of the respondent’s liability is:

Amicus costs on interlocutories $8,712.00

25% of costs on substantive hearing

($39,390 x 25%) 9,847.50

Disbursements – 25% contribution

_{($3,682.93 x 25%) 920.74}

Total order in favour of the amicus $19,480.24

[13] Before leaving the issue of the liability of the respondent, I note that Mr Nee Harland’s repeated insistence that his instructions come only from the respondent trust, and not from the individual most closely associated with those instructions, namely Mr Nigel Baker, is disingenuous. The majority of the initiatives pursued in these proceedings by Mr Nee Harland were to address concerns with which Mr Nigel Baker was, in his personal capacity, very much identified. It was apparent from the conduct of the respondent’s case throughout that Mr Nigel Baker, at least substantially, if not entirely, controlled the instructions given to Mr Nee Harland. A number of the collateral issues raised by Mr Nee Harland were to advance Mr Nigel Baker’s personal interests.

[14] If, after allowing set-off for any sums owed to the respondent trust, it does not have the capacity to meet remaining liabilities in relation to these proceedings, then I would be prepared to consider applications for orders attributing costs liability to Mr Nigel Baker as a non-party. This does no more than recognise such a contingent prospect, without in any sense suggesting the prospects, if any, of success.

[15] To the extent that orders in relation to the costs incurred by the amicus were not made against parties, Mr Soper’s memorandum sought a further or alternative order under s 99A(1)(b) that the costs incurred be paid out of public funds.

[16] In resisting any liability on the applicants, Mr Bate submitted that the Crown had materially contributed to the need for an expanded trust deed by the inadequacies of the terms of the original settlement which created the fund, control over which has been at issue in the proceedings. That criticism would not justify

re-allocating liability for costs in any conventional assessment of costs liability between parties. It is, however, material to the need for the proceedings in the first place, and the justification for the involvement of an amicus in dealing with them, that the Crown provided for the fund on terms that did nothing to guide subsequent management of it. In addition, once disparate interests arose among the range of potential beneficiaries, it was appropriate to look to the Crown for objective guidance in their resolution in the proceedings.

[17] I am accordingly satisfied that it is appropriate to make an order for the balance of the costs incurred by the amicus that are not to be met by the respondent, to be paid out of public funds. That liability is quantified as:

75% of costs on substantive hearing

($39,390 x 75%) 29,542.50

Disbursements – 75% contribution

_{($3,682.93 x 75%) 2,762.20}

Total $32,304.70

[18] I direct that when the order in this respect is sealed, the Registrar is to serve it on the Ministry of Justice.

Dobson J

Solicitors:

Hansen & Bate Limited, Hastings for applicants

Te Nahu Lovell & Co, Rotorua for respondent

Crown Law, Wellington for amicus curiae

Counsel:

P A Nee Harland, Havelock North