Sutton v Canterbury Regional Council [2015] NZHC 1000 (12 May 2015)

Last Updated: 14 May 2015

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2014-409-000573 [2015] NZHC 1000

BETWEEN	R W SUTTON AND OTHERS Applicants
AND	CANTERBURY REGIONAL COUNCIL First Respondent INFINITY INVESTMENT GROUP LIMITED AND ANOTHER Second Respondents

Judgment: 12 May 2015

JUDGMENT OF GENDALL J (As to Costs)

SUTTON v CANTERBURY REGIONAL COUNCIL [2015] NZHC 1000 [12 May 2015]

Background

[1] On 27 February 2015, I gave judgment in this proceeding,¹ such that the applicants (the Suttons and Lone Star Farms) were largely successful. Their application for judicial review was granted, the decision of the Canterbury Regional Council (the Council) in question was set aside and matters were referred back to the Council for a reconsideration. Costs were reserved, and I directed the parties to file memoranda on the question if they were unable to agree on any issue of costs between them.²

[2] They have been unable to agree and memoranda have now been filed by counsel as follows:

(a) Memorandum dated 18 March 2015 from counsel for the Suttons and

Lone Star Farms;

(b) Memorandum dated 25 March 2015 from counsel for the second respondents (Infinity); and

(c) Memorandum dated 10 April 2015 from counsel for the Council.

These memoranda have now been referred to me. As no party has expressed a wish to be heard on the matter, this decision is made based on the material before the Court.

[3] Counsel for the applicants, the Suttons and Lone Star has filed submissions seeking costs on a 2B basis against the second respondents Infinity only in the sum of $25,671.00 plus disbursements of $6,931.41.

[4] In response, Infinity denies that it should be held liable for the applicants’

_{costs, and further Infinity itself seeks costs here from the Council.}

¹ Sutton v Canterbury Regional Council [2015] NZHC 313.

[5] The Council opposes any award of costs against it. This is on the basis that it says it did not oppose the application to this Court for judicial review of its decision and also it gave notice it would merely abide the decision of the Court on the application.

Applicants’ (the Suttons’ and Lone Star’s) submissions on costs

[6] As I have noted, the Suttons and Lone Star as the successful parties here seek costs on a 2B basis against Infinity in the sum of $25,671.00 plus disbursements of

$6,931.41. The applicants however do not seek any award of costs against the Council. They also seek leave however to recover the expenses of Ms Keri Johnston as an expert witness. These expenses are a disbursement that requires the approval of the Court under r 14.12(2)(a)(i), not being a disbursement listed in r 14.12(1)(b).³

Recovery of this witness expense is sought on the basis that it is said this evidence was necessary to enable the Court to deal with the issue before it, and the costs are reasonable.

[7] Counsel for the applicants has submitted the following calculation of their costs calculated on a 2B basis and disbursements:

Costs
		Daily rate		$1,990.00
Step	Description	Days		Amount
1	Commencement of proceeding	3.0		$5,970
11	Filing memorandum for case management	0.4		$796
30	Preparation of applicants’ affidavits	2.5		$4,975
31	Preparation of common bundle etc (applicant)	2.5		$4,975
33	Preparation for hearing	3.0		$5,970
34	Appearance at hearing (including junior)	1.5		$2,985
Costs Total				$25,671.00
Disbursements
Description			Amount
Filing fee			$540.00
Scheduling fee			$640.00
Hearing fee			$640.00
Ms Keri Johnston’s invoices as expert (copies attached to memorandum)			$5,111.41
Disbursements Total			$6,931.41
Total (costs and disbursements)			$32,602.41

³ Progressive Enterprises Ltd v North Shore City Council [2005] NZHC 475; (2005) 17 PRNZ 919 (HC).

Second respondents’ (Infinity’s) submissions on costs

[8] As I have noted, Infinity seeks costs from the Council here and also an order that it Infinity is not to pay the applicants’ costs.

[9] Infinity relies upon r 14.14 in particular, which states that the costs between unsuccessful respondents are borne jointly and severally. Counsel also cites the decision of the Court of Appeal in Lane Group Ltd v DI & L Patterson Ltd, which ruled that decisions should be based on an assessment of the “overall justice” of the case.⁴ There is no general rule as to how the costs are to be weighed between the

parties.⁵

[10] It is submitted that all of Infinity’s actions in this matter have been undertaken in reliance on information originally supplied to it by the Council and the incorrect processing of its resource consent on the basis of that information. It is accordingly suggested that this is a matter where the overall justice of the case would not be served by allowing Infinity to suffer further for what are said to be the Council’s mistakes.

[11] On this, counsel for Infinity also cites Barrett v Wellington City Council, where Chisholm J made an order granting costs to the second and third defendants in a judicial review case which is suggested as similar to the present case.⁶ In Barrett Chisholm J focused on the fact that a decision to notify is a decision for the Council to make and it is the Council’s responsibility to comply with the notification provisions in the Resource Management Act 1991 (the RMA). His Honour held:⁷

... responsibility for that outcome must rest squarely with the first defendant. The second/third defendants were parties to the review process because they were parties affected, not because they carried responsibility in some way or other for the Council's decision not to notify.

⁴ Lane Group Ltd v DI & L Patterson Ltd [2001] 1 NZLR 129, (1999) 13 PRNZ 509 (CA) at [90]

_{per Tipping J.}

⁵ _{At [85].}

⁶ Barrett v Wellington City Council [2000] NZRMA 481.

[12] In deciding whether the Council should be responsible for the costs of the applicants for resource consent, Chisholm J further stated:⁸

First, the fact that the second/third defendants sought to uphold the Council's decision should not count against them. Given their expenditure on the complex running into many millions of dollars, it is not at all surprising that they attempted to support the Council's decision. Secondly, while the first defendant now claims that if it had been aware that it might have to pay the second/third defendants' costs it would have more actively discouraged the second/third defendants from incurring significant costs; the reality was that it was always vulnerable to an order for costs in favour of the second/third defendants. Thirdly, I do not accept that shortcomings in the developer's assessment of effects has any direct bearing on the Council's decision not to notify. Fourthly, the fact that the second defendant might be an experienced property manager cannot alter the fact that it was the Council's decision which gave rise to this proceeding.

[13] In the present case, Infinity considers that the Council should be liable for all costs in this matter because:

(a) the Council had a duty to keep its records correctly and to ensure that all resource consents to take water were correctly recorded;

(b) as set out at [59] of the decision, the Council did not deny that in this instance it had not fulfilled this duty;

(c) Infinity was entitled to rely on information provided by the Council in relation to its plans and resource consents as true and correct;

(d) Infinity was likewise entitled to rely on the Council processing their application using correct information in relation to its plans and resource consents;

(e) the Council had a duty to comply with the provisions of the RMA as they applied to notification and as they applied to the substantive decision made; and

(f) until the date of the hearing, the Council never acknowledged by affidavit, memorandum or otherwise, that it accepted that the

Davenport Holdings Limited and Montara Properties Limited resource consents meant that there was less than 93 l/s available to Infinity as part of the ‘A band’. Although the Council sent a copy of Ms Johnston’s report to Infinity on 19 January 2015 setting out her concerns about the Davenport Holdings Limited entry in the database and the lack of the Montara Properties Limited entry in the database, the Council did not acknowledge that it should have addressed those matters in the way Ms Johnston suggested. Infinity made significant investment decisions on the basis of the Council’s position that 93 l/s water was available as part of the ‘A band allocation’.

[14] In seeking costs from the Council here, counsel for Infinity has drafted the following calculation of its costs (similarly on a 2B basis):

Costs
		Daily rate	$1,990.00
Step	Description	Days	Amount
2	Commencement of defence by defendant	2.0	$3,980
28	Obtaining judgment without appearance	0.3	$597
29	Sealing order or judgment (in respect of change of party to Pamela Jane Higgins following issue of probate)	0.2	$398
30	Plaintiff's or defendant's preparation of briefs or affidavits	2.5	$4,975
32	Defendant's preparation of list of issues, authorities, and common bundle	2.0	$3,980
33	Preparation for hearing	3.0	$5,970
34	Appearance at hearing for sole or principal counsel	1.0	$1,990
35	Second and subsequent counsel if allowed by court	0.5	$995
Costs Total			$22,885.00

[15] Finally, in their letter addressed to Mr Maw counsel for the Council, counsel for Infinity advises that:

Copies of the invoices relating to the work carried out by Tom Heller and Brett Giddens will also be forwarded to you for payment by the Regional Council.

[16] The Court has not been provided with these invoices however.

First Respondent’s (the Council’s) reply submissions on costs

[17] As to this claim for costs by Infinity against the Council, in reliance on Beach Road Preservation Society v Whangarei District Council, counsel for the Council, Mr Maw, submits that Infinity should not be awarded costs in its favour, because it

was unsuccessful in this proceeding.⁹ In Beach Road Preservation Society Chambers J considered the issue of costs following a successful application for judicial review brought by the first applicant in respect of a decision of the first respondent (the Whangarei District Council) granting resource consent to the second respondent, a Mr Wilkinson.

[18] Chambers J observed that both parties had adopted a position that was wrong in law, and proceeded to expose their misunderstandings in the express hope of clarifying the philosophy of the new costs regime under the High Court Amendment Rules 1999 for the benefit of the profession.¹⁰

[19] On all of this, His Honour concluded:¹¹

On a costs application we are not concerned with how the original decision under attack came to be made. What we are concerned with is the litigation itself. The society brought a claim correctly identifying the council and Mr Wilkinson as respondents. On being served with the notice of proceeding and statement of claim, the council and Mr Wilkinson had an election: to defend the proceeding or not. Both chose to defend the proceeding. I concluded that the proceeding was well brought. The society is entitled to costs. Both respondents must share responsibility for those costs because, and only because, each decided to defend the proceeding, wrongly, as it turned out. That is why they must pay costs to the society. It is irrelevant how the land came to be zoned as it was or how the resource consent decision came to be made. Parties pay costs because they have elected to bring or defend proceedings and have adopted a stance in those proceedings which a Court has found to be unjustified.

[20] Mr Maw however contrasts the position of the Council in the present proceeding with that of the council in Beach Road Preservation Society. Upon being served with the proceeding here, the Council elected not to support or oppose the application but simply to abide the decision of the Court.¹² The Council communicated this decision to the parties by memorandum dated 24 September

2014, and proceeded to make documents available to both parties by way of informal

_{disclosure. And, during the hearing, counsel for the Council did not adopt a position}

⁹ _{Beach Road Preservation Society v Whangarei District Council [2001] NZHC 811; (2001) 16 PRNZ 13 (HC).}

10. At [2]. The 1999 iteration of the High Court Rules is, for the purposes of this case, materially identical to the current version.

¹¹ _{At [21].}

¹² Sutton v Canterbury Regional Council [2015] NZHC 313 at [7].

in respect of the proceeding. Rather, counsel assisted the Court by answering questions put to him, and clarified factual matters which arose during the hearing.

[21] As to the reasons adduced by counsel for Infinity supporting its view the Council should be liable for all costs in this proceeding, Mr Maw submits that these reasons are concerned only with how the original, successfully reviewed, decision came to be made. They do not relate to the litigation itself. Mr Maw then suggests that the Council did not adopt an unjustified position, nor fail to act reasonably in relation to the conduct of the judicial review proceedings. He submits that an award of costs against the Council in favour of Infinity would be tantamount to punishing the Council for how the decision under challenge came to be made which is wrong.

[22] Although Chisholm J resorted to the Court’s general discretion to award costs in favour of an unsuccessful party in Barrett v Wellington City Council, Mr Maw goes on to distinguish Barrett on the facts.¹³ In Barrett, the respondent council elected to actively defend judicial review proceedings brought against its decision not to notify an application for resource consent. The Council was therefore unsuccessful in its defence of the proceedings, and was itself an unsuccessful party. In contrast, the Council in the present case signalled at the outset of the proceeding that it would abide the Court’s decision. It took no active role in the proceeding and

cannot, in Mr Maw’s submission, be described as an unsuccessful party.

[23] Mr Maw submits that the general principle of costs should apply here, and the Council (as a party who did not “fail with respect to a proceeding” because it did not argue a position) should not be held liable for the costs of Infinity who did not “succeed” in terms of r 14.2(a). Further, Mr Maw relies upon the judgment of this

Court in Wang v North Shore District Court, where Duffy J held:¹⁴

The second defendant was not obliged to defend the judicial review but chose to do so. He cannot now complain that his defence should lead to an award of costs.

And he contends therefore that, as Infinity was not obliged to defend the judicial review proceedings, but chose to do so, accordingly, an award of costs here in favour

¹³ _{Barrett v Wellington City Council [2000] NZRMA 481.}

¹⁴ Wang v North Shore District Court [2014] NZHC 1385 at [6].

of Infinity cannot be justified.

[24] As to the applicants’ costs here, it is significant as I see it that they have not sought costs against the Council. It is true that r 14.14 states that costs between unsuccessful parties are borne jointly and severally, unless the Court otherwise directs. For the reasons set out above, however, Mr Maw submits that the Council is not an unsuccessful respondent. But, as to that submission, it is perhaps useful to consider the decision in Kawarau Jet Services Holdings Ltd v Queenstown Lakes

District Council.¹⁵ In that case, French J dismissed the “too absolute” proposition

that a person who abides the decision of the Court can never be liable for any costs.¹⁶

Her Honour concluded that:¹⁷

Ultimately, the task of the Court is to make an assessment of overall justice as between the particular parties. On the facts of this case, where the Council made a very fundamental and serious error which necessitated the issuing of proceedings, I consider the council should make a contribution. However, because it responsibly did not defend the proceeding, its liability should be limited to 20% of the costs and disbursements, excluding the costs of the experts.

[25] While conceding now that the Council made an error in processing Infinity’s resource consent application, Mr Maw submits that Infinity’s assessment of environmental effects (AEE) had a direct bearing on the Council’s decision to classify the water take as a discretionary activity, and to process the application incorrectly on a non-notified basis. The Council relied heavily on the information within this AEE.

[26] Mr Maw adds that, although Infinity was entitled to rely on information provided by the Council as true and correct, Infinity was “somewhat selective” about the information it relied on. In particular, from multiple differing consent inventories, Infinity apparently chose to rely on the inventory most favourable to it

_{and prepared its AEE in accordance with that inventory.}

¹⁵ Kawarau Jet Services Holdings Ltd v Queenstown Lakes District Council HC Invercargill CIV-

_{2008-425-518, 19 May 2009.}

¹⁶ _{At [18].}

¹⁷ At [18].

[27] Ultimately, it is the Council’s position that overall justice would not be served if costs were to be awarded against the Council here, in favour of either Infinity or the applicants. Further, such an award Mr Maw maintains would be inconsistent with the principle that, so far as possible, the determination of costs should be predictable and expeditious.¹⁸ The present circumstances he says do not justify a departure from the general principle that the party who fails with respect to a proceeding should pay costs to the party who succeeds.

Analysis – the applicants’ claims

Costs generally

[28] The starting point is that the High Court has a discretion in relation to any matters relating to costs of a proceeding.¹⁹ The exercise of this general discretion has never been unfettered, however, and is qualified by the specific costs rules in rr 14.2-

_14.10.²⁰

[29] It is a well-established principle of costs determination that the party who fails with respect to a proceeding should pay costs to the party who succeeds.²¹

Further, an award of costs should reflect the complexity and significance of the proceeding. Also, costs should be assessed by applying the appropriate daily recovery rate to the time considered reasonable for each step reasonably required in relation to the proceeding or interlocutory application.²²

[30] The applicants’ proposed table of costs (outlined at [7] above) accords with the appropriate daily recovery rates for category 2 band B proceedings as specified in Schedule 2, and with the reasonable time allocations for each step as specified in

_{Schedule 3.}²³

¹⁸ _{High Court Rules, r 14.2(g).}

¹⁹ _{High Court Rules, r 14.1(1).}

²⁰ Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 285 at [7] and

[16]; Glaister v Amalgamated Dairies Ltd [2004] NZCA 10; [2004] 2 NZLR 606, (2004) 16 PRNZ 1047 (CA) at [9], [21]-[24] and [28]; and Mansfield Drycleaners Ltd v Quinny’s Drycleaning (Dentice Drycleaning Upper Hutt) Ltd [2002] NZCA 277; (2002) 16 PRNZ 662 (CA) at [27].

²¹ _{High Court Rules, r 14.2(a).}

²² _{Rule 14.2(b) and (c).}

²³ Rules 14.4(a) and 14.5(1)(a).

[31] In accordance with the general principles relating to the determination of costs, as outlined in r 14.2, the applicants are entitled to costs of $25,671.00. I will address shortly who is to be required to meet these costs.

Disbursements – court fees

[32] To be recoverable as a disbursement, an item must meet the r 14.12(1) definitions, and will then be recoverable only to the extent that it was “reasonably necessary”, “reasonable in amount” and is not held by the Court to be “disproportionate in the circumstances of the proceeding”.²⁴

[33] The applicants are entitled to disbursements for filing, scheduling and hearing fees, as these are fees of court specified in r 14.12(1)(b) which meet the requirements of r 14.12(2) and (3).

Disbursements – the expert witness fee

[34] Expert witness fees and expenses are a disbursement.²⁵ However, as the applicants note, they must be approved by the Court under r 14.12(2)(a)(i), as they are not listed in r 14.12(1)(b). The ultimate issue for the Court is whether the r

_{14.12(2) and (3) criteria are satisfied.}²⁶

[35] Ms Johnston is a consulting senior employee of Irricon Resource Solutions (IRS). The attached invoices from IRS show that Ms Johnston was retained by the applicants to:

(a) carry out an assessment on reliability on existing users resulting from the grant of the Foveran consent for additional primary water resource allocation;

(b) prepare and amend draft affidavits for these judicial review proceedings; and

²⁴ _{Rules 14.12(2)(c)-(d) and 14.12(3).}

²⁵ _{Progressive Enterprises Ltd v North Shore City Council, above n 3, at [22]-[26]}

²⁶ Air New Zealand Ltd v Commerce Commission [2007] NZCA 27; [2007] 2 NZLR 494, (2007) 18 PRNZ 406 (CA)

at [47].

(c) read and provide comments on Infinity’s affidavits.

[36] The invoices include fees for the copying and printing of Ms Johnston’s

affidavits, as well as postage and courier costs between Timaru and Oamaru.

[37] In my decision, I noted that:²⁷

... before me Mr Maw, counsel for the Council, confirmed that all these calculations on which the Council relied at the time clearly contained a significant error, an error which was now acknowledged. Ms Johnston, a consultant to the applicants, had as recently as November 2014 undertaken an inventory review report for the Council detailing the total consented water take (including Infinity’s 93 L/s) from the Hakataramea River and its tributaries. This showed clearly a total take of 565 L/s, thus exceeding the allowable take by some 65 L/s. The Council accepts now this was always the correct position and before me there was no real dispute of any kind regarding this conclusion. This was despite the fact that Ms Johnston’s inventory review report had been circulated to all parties at the end of January 2015.

[38] In calculating the true availability of primary resource consent allocations, Ms Johnston’s evidence was crucial in revealing the Council’s error, and in assessing the impact that the challenged grant of consent (the Foveran consent) had on reliability for existing users, including the applicants. In my view these expert witness’ expenses were specific to and reasonably necessary for the conduct of the proceeding, reasonable in amount ($5,111.41) and proportionate in the circumstances

of the proceeding.²⁸ I approve this as a disbursement, pursuant to r 14.12(2)(a)(i).

The applicants are clearly entitled to recover expenditure for the time Ms Johnston spent in assessing the impact on reliability of the Foveran consent, in preparing her expert evidence, and in critiquing Infinity’s affidavits so as to assist the applicants to understand the issues.²⁹

[39] Generally, office overheads usually absorbed by a party’s solicitors (such as

online legal research) are not recoverable.³⁰ However, office expenses that were

_{“necessary and specific to the litigation” (including photocopying, binding, and}

²⁷ _{Sutton v Canterbury Regional Council, above n 1, at [23].}

²⁸ _{High Court Rules, r 14.12(2) and (3).}

²⁹ _{Air New Zealand Ltd v Commerce Commission, above n 26, at [62].}

30. Todd Pohokura Ltd v Shell Exploration NZ Ltd HC Wellington CIV-2006-485-1600, 1 July 2011 at [61] and [70].

courier charges) have been allowed in several decisions of this Court.³¹ The office overheads listed in Ms Johnston’s invoices – printing and courier fees – are claimable in the present case, as they were both necessary and specific to the litigation.³²

[40] As I have found that Ms Johnston’s fees and expenses were both reasonable and necessarily incurred, they are recoverable in full.³³ In addition to the listed court fees, the applicants are therefore entitled to recover Ms Johnston’s fees and expenses as disbursements, making a total sum for disbursements of $6931.41.

Payment of the applicants’ costs

[41] Infinity, as the unsuccessful party who actively resisted the applicants’ judicial review application here and argued their position in full, must be the primary party liable for the applicants’ costs. And because the Council elected not to oppose and participate in these proceedings, it would be unjust, in my view, to make it jointly and severally liable for the full amount of the applicants’ costs.³⁴

[42] The Council however clearly made mistakes in its original decision and must be seen as responsible in part for the outcome here. Therefore, to achieve overall justice between the parties in the circumstances of this case, I consider it necessary to apportion the applicants’ costs here in the same way as did French J in Kawarau Jet Services Holdings. In this case, as in the proceedings before French J, the Council made “a very fundamental and serious error which necessitated the issuing

of proceedings”.³⁵ Accordingly, and despite the comments of Chambers J on the

basis of shared responsibility for costs in Beach Road Preservation Society, as I see

_{it the Council should contribute in some way to the applicants’ costs.}

³¹ Mawhinney v Waitakere City Council HC Auckland CIV-1999-404-1850, 26 September 2007 at [12]; followed in Liu v Ward HC Palmerston North CIV-2010-454-48, 2 August 2011 at [19]; and Bryant v Satara Co-operative Group Ltd HC Napier CIV-2011-441-715, 30 January 2012 at [25].

³² _{Liu v Ward, above n 31, at [30].}

³³ Air New Zealand Ltd v Commerce Commission, above n 26, at [47]-[48] and [62]; Scandle v Far

_{North District Council HC Whangarei CIV-2008-488-203, 31 March 2011 at [34].}

³⁴ Kawarau Jet Services Holdings Ltd v Queenstown Lakes District Council, above n 15, at [17].

[43] As to quantum, I must note and weigh into the consideration here the Council’s responsible decision not to oppose the application in this proceeding, and their apparent reliance earlier on the erroneous AEE which Infinity had compiled and provided to the Council. As with Kawarau Jet Services Holdings, I consider here the Council’s liability should be limited and a contribution of 20 per cent in my view would be appropriate. But, unlike the decision in Kawarau Jet Services Holdings I do include the expert evidence fees and expenses ($5,111.41), together with the other disbursements in the Council’s proportionate liability here. Noting matters raised by French J in Kawarau Jet Services Holdings, the real protagonist in these present proceedings I find was Infinity. But clearly the expert Ms Johnston’s report and her overall contribution here assisted in correcting the earlier errors made by the Council and establishing the proper position. As such, in assessing the overall justice in this case, the Council should meet a part of this disbursement.

[44] In coming to this conclusion, I have not overlooked concerns that might exist about Infinity’s ability to meet costs. However, as a matter of principle that cannot be a reason for making the Council jointly and severally liable as if it were a guarantor.³⁶

Outcome as to the applicants’ costs and disbursements application

[45] Accordingly, as to the applicants here they are entitled to recover their costs and disbursements as claimed and the following orders are now made:

(a) The Council is to pay 20 per cent of the applicants’ total 2B costs and disbursements, being the sum of $6520.48.

(b) Infinity is to pay 80 per cent of the applicants’ total 2B costs and disbursements, being the sum of $26,081.93.

Analysis – Infinity’s costs claim

[46] On this aspect, Mr Maw submits that an award of costs against the Council in favour of Infinity here would effectively punish the Council for how the original

decision under challenge came to be made, and have little to do with the present litigation. On this costs aspect, I accept this submission. As Chambers J stated in Beach Road Preservation Society, the costs regime focuses not on how the original decision under attack came to be made, but on the litigation itself. Indeed, his Honour held that:³⁷

It is irrelevant ... how the resource consent decision came to be made. Parties pay costs because they have elected to bring or defend proceedings and have adopted a stance in those proceedings which a Court has found to be unjustified.

[47] It is Infinity which has chosen to defend the applicants’ judicial review proceedings here. In contrast to the respective council respondents in Beach Road Preservation Society and Barrett v Wellington City Council, the Council here elected not to defend the proceeding. From the inception of these proceedings, the Council

indicated that it would abide the decision of this Court.³⁸ Moreover, as I have noted

above, counsel for the Council commendably assisted this Court throughout the proceedings.

[48] It is clear too that Infinity was not obliged to oppose the judicial review proceedings, but chose to actively do so. Infinity cannot now complain that its actions which were unsuccessful should lead to an award of costs in its favour.³⁹

[49] In light of the reasoning and outcomes in Beach Road Preservation Society and Wang v North Shore District Court, and an assessment of the overall justice of the case here, I consider that the Council should not be obliged to pay costs to

_{Infinity here.}⁴⁰

³⁷ _{Beach Road Preservation Society v Whangarei District Council, above n 9, at [21].}

³⁸ _{Sutton v Canterbury Regional Council, above n 12, at [7].}

³⁹ _{Wang v North Shore District Court, above n 14, at [6].}

⁴⁰ Beach Road Preservation Society v Whangarei District Council, above n 9; Wang v North Shore

District Court, above n 14.

Outcome as to Infinity’s costs application

[50] I dismiss the application by Infinity seeking an order for the Council to meet

Infinity’s costs here.

...................................................

Gendall J

Solicitors:

Brandts-Giesen McCormack, Rangiora

Pru Steven QC, Christchurch

Wynn Williams, Christchurch

R J Somerville QC, Dunedin

Greenwood Roche Chisnall, Christchurch