Ngati Hurungaterangi v Ngati Wahiao [2018] NZHC 1991 (7 August 2018)

Last Updated: 23 August 2018

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY I TE KŌTI MATUA O AOTEAROA TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2013-463-000448 [2018] NZHC 1991

BETWEEN	NGĀTI HURUNGATERANGI, NGĀTI TAEOTU ME NGĀTI TE KAHU O NGĀTI WHAKAUE Plaintiffs
AND	NGĀTI WĀHIAO Defendant

Hearing:	(On the papers)
Counsel:	Craig Orton for the Plaintiffs Angelo Papageorgiou and Felix Geiringer for Defendant
Judgment:	7 August 2018

[COSTS] JUDGMENT OF MOORE J

This judgment was delivered by me on 7 August 2018 at 2:30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

NGĀTI HURUNGATERANGI & ORS v NGĀTI WĀHIAO [2018] NZHC 1991 [7 August 2018]

Introduction

[1] For over five years the parties in this proceeding have been involved in a dispute in various fora about who has mana whenua over lands near Rotorua known as Whakarewarewa and Arikikapakapa (“the lands”). Now that the Court of Appeal has referred the dispute back to arbitration,¹ costs are sought on various steps taken in this Court. This judgment resolves those applications.

Background

[2] To understand why the proceedings have reached this stage, and the steps for which costs are now sought, some context is required.

[3] In 2008, over 100 years after decisions of the Native Land Court enabled the Crown to acquire the lands, it agreed to return them to the parties: Ngāti Hurungaterangi, Ngāti Taeotu me Ngāti Te Kahu o Ngāti Whakaue (“Ngāti Whakaue”), and those hapū comprising Tuhourangi Ngāti Wāhiao (“Ngāti Wāhiao”). Ngāti Whakaue and Ngāti Wāhiao were unable to agree on which was entitled to the lands, but agreed to establish a joint trust to take title to the lands until determination of their competing claims.

[4] Eventually, their dispute over who had mana whenua was referred to arbitration under the trust deed. The arbitral panel delivered an interim decision on 7 June 2013 which it adopted in whole as the final award on 14 November 2014. It determined that the lands should be apportioned equally between Ngāti Whakaue and Ngāti Wāhiao.

[5] Ngāti Whakaue were dissatisfied and challenged the award, seeking leave to appeal to the High Court. Duffy J declined to grant leave,² and an application in this Court for to appeal that decision to the Court of Appeal was also declined (“First Leave to Appeal to CA Decision”), but special leave was granted by the Court of Appeal.³

1. Ngāti Hurungaterangi v Ngāti Wahiao [2017] NZCA 429, [2017] 3 NZLR 770 [Substantive CA Decision].

² Ngāti Hurungaterangi v Ngāti Wahiao [2014] NZHC 846 [HC Leave Decision].

³ Ngāti Hurungaterangi v Ngāti Wahiao [2014] NZCA 592 [CA Special Leave Decision].

[6] Duffy J granted the parties leave to file memoranda as to costs on her decision.⁴ In a Minute dated 24 March 2015, she declined to deal with the Ngāti Wāhiao’s costs application on the basis her decision had been successfully appealed to the Court of Appeal. But she reserved leave to make further applications at a later date if the parties could not agree.

[7] I then heard the substantive appeal. In a decision of 1 July 2016 I dismissed it, finding there were no errors of law in the panel’s decision.⁵ I indicated Ngāti Wāhiao, as the successful party, was entitled to costs on a 3B basis, which the parties agreed was the appropriate scale.⁶ But I later granted leave for Ngāti Whakaue to appeal my decision on approved questions of law.⁷ Because Ngāti Whakaue were successful in that application, I awarded them costs on a 3B basis.⁸

[8] The Court of Appeal allowed the appeal, finding the panel erred in failing to make reasoned findings as to who the beneficial owners of the lands were before 1893, failing to determine the parties’ claims having regard to those findings, and allocating beneficial ownership according to broad conceptions of fairness.

[9] The Court of Appeal awarded costs on the appeal, but did not make directions for the treatment of costs awarded or yet to be awarded for earlier decisions. That is why Ngāti Whakaue have now applied for determination of costs on the earlier proceedings in this Court.

The costs application

[10] Having succeeded in the Substantive CA Decision, Ngāti Whakaue seek:

(a) costs on Duffy J’s HC Leave Decision and the First Leave to Appeal to CA Decision; and

⁴ HC Leave Decision, above n 2, at [22].

5. Ngāti Hurungaterangi v Ngāti Wahiao [2016] NZHC 1486, [2016] 3 NZLR 378 [Substantive HC Decision].

⁶ At [216]-[217].

7. Ngāti Hurungaterangi v Ngāti Wahiao [2016] NZHC 3156 [Second Leave to Appeal to CA Decision].

⁸ At [34].

(b) costs on my Substantive HC Decision.

[11] In his memorandum on behalf of Ngāti Wāhiao dated 5 April 2018, Mr Geiringer:

(a) opposes costs being awarded on the HC Leave Decision, on the basis Ngāti Whakaue were ultimately successful on a different basis in the Substantive CA Decision;⁹

(b) accepts costs on the Substantive HC Decision should now be awarded to Ngāti Whakaue, but disputes the quantum of the award sought; and

(c) seeks recall of the Second Leave to Appeal to CA Decision, on the basis costs should be redetermined in light of the Substantive CA Decision and because Ngāti Wāhiao was not heard on the application.¹⁰

[12] After inspecting the memoranda filed by the parties, I considered there was substantial agreement on the form of an award: having been successful in the Court of Appeal, Ngāti Whakaue are entitled to costs, on a 3B basis. The question now is what matters should be covered by that order, and whether there are any matters justifying an uplift or reduction in costs. I sought a joint memorandum identifying areas of agreement and disagreement which needed to be resolved. I also invited counsel to, if possible, reach agreement on how costs on the Second Leave to Appeal to CA Decision should be addressed.

[13] A joint memorandum was filed on 1 June 2018. Although it helpfully set out areas of agreement, the parties were not able to narrow the issues for resolution.

Should costs be awarded to Ngāti Whakaue on the Stage One proceedings?

[14] In her Minute of 24 March 2015 Duffy J commented “the basis on which Ngāti Wāhiao sought costs in this Court no longer exists”, and that if the parties could not

⁹ I refer to these as the “Stage One proceedings”.

10. I refer to the Substantive HC Decision and the Second Leave to Appeal to CA Decision as the “Stage Two proceedings”.

reach agreement on the appropriate costs to be paid for the Stage One proceedings then leave was reserved for them to make a further application for costs. By memorandum of 15 March 2018, Ngāti Whakaue sought costs on the Stage One proceedings on a 2B basis totalling $15,422.50 and $2,450.76 in disbursements.

[15] Ngāti Wāhiao argue no costs should be awarded for the Stage One proceedings, as success in the CA Special Leave Decision which overturned the decisions in this Court declining to grant Ngāti Whakaue leave to appeal is not a proper basis to award costs. That is because the only ground on which Ngāti Whakaue ultimately succeeded was inadequacy of reasons, a ground not advanced in either Stage One hearing in this Court. That ground was argued for the first time in the CA Special Leave Decision. Generally, Mr Geiringer points out the grounds on which leave was granted by the Court of Appeal are formulated differently from the grounds argued in this Court.

[16] Analogy with Ireland v Grant is available.¹¹ In that case Gendall J originally awarded costs to the party that successfully opposed leave being granted to the Court of Appeal. Special leave to appeal was granted by the Court of Appeal, although the appeal proper was unsuccessful. When the matter returned to the High Court on the question of costs, the appellant argued the leave costs award should be varied under r 14.8(2) as the Court of Appeal’s special leave decision showed the order declining leave should not have been made. Gendall J declined to vary the award. His reasons are instructive:¹²

(a) the ultimate outcome revealed the leave decision was correct;

(b) the discretion to grant leave in the High Court and special leave in the Court of Appeal are separate and distinct jurisdictions, and the fact that the Court of Appeal granted special leave does not mean that the High Court ought not to have granted leave; and

(c) all awards of costs are specific to the individual circumstances of the case.

¹¹ Ireland v Grant [2016] NZHC 2752.

¹² At [24].

[17] In the particular circumstances of this case the proper outcome is that costs lie where they fall. For the reasons set out by Mr Geiringer, the CA Special Leave Decision has not shown either Stage One proceeding in this Court to be in error. In fact all of the grounds of appeal advanced in this Court during the Stage One proceedings ultimately failed; the ground on which Ngāti Whakaue ultimately succeeded was the ground which appeared for the first time in the CA Special Leave Decision.

[18] In that context I do not consider Ngāti Whakaue is entitled to costs for the Stage One proceedings in this Court. Neither do I consider Ngāti Wāhiao should be awarded costs, as Mr Geiringer responsibly accepts. I agree that the appropriate order in the circumstances is that costs on these proceedings should lie where they fall.

What costs should be awarded for the Substantive HC Decision?

[19] Ngāti Wāhiao concedes Ngāti Whakaue is entitled to 3B costs. Ngāti Whakaue seeks costs and disbursements totalling $32,928.01 in relation to the Substantive HC Decision. This amount represents an adjusted figure which reflects some of Ngāti Wāhiao’s objections. Ngāti Wāhiao continues to dispute the quantum, and submits no more than $22,784.25 should be awarded.

[20] I agree that some adjustment is necessary for the $3,048.76 in disbursements Ngāti Whakaue claims for preparing a transcript of the arbitration for the purpose of the appeal. Mr Geiringer advises (without disagreement from Mr Kahukiwa) that the transcript was over two months late and unusable. Ultimately Ngāti Wāhiao was required to pay to correct the transcript. Disbursements are only to awarded to the extent they are reasonably necessary for the conduct of the proceeding. Given the expense Ngāti Wāhiao was put to in correcting the transcript, I do not consider the costs incurred by Ngāti Whakaue were reasonably necessary and claimable as disbursements.

[21] Otherwise I do not consider adjustment from the amount claimed is necessary. While in no Court did Ngāti Whakaue succeed in its argument concerning s 348 of the Te Ture Whenua Māori Act 1993, that by itself is not a basis on which to reduce costs. The argument was not so meritless that it unnecessarily contributed to the expense of
the proceeding. The Court of Appeal’s ultimate conclusion, framed similarly to my own, was while it was “regrettable that the panel did not directly address” this argument, consideration of it was nevertheless implicit in its decision.¹³ This conclusion is reinforced by the Court of Appeal not making any reduction in costs on this basis. I see no reason to depart from that position.

[22] Likewise I do not consider the delay caused by Ngāti Whakaue’s failure to produce a workable transcript is grounds for a global reduction. That factor has been adequately taken into account in declining to award Ngāti Whakaue disbursements for this step.

How should the Second Leave to Appeal to CA Decision costs awarded be dealt with?

[23] I awarded $19,870.80 in costs to Ngāti Whakaue in relation to its successful application to appeal the Substantive HC Decision. Ngāti Wāhiao now seeks that the decision be recalled on the basis the award was obtained without Ngāti Wāhiao being served with the application.

[24] Rather than ordering recall, I prefer to exercise my power under r 14.8(2) of the High Court Rules 2016 (“the Rules”) to vary the earlier order for costs. I consider the application and my order fits within the definition of interlocutory application and order in the Rules,¹⁴ or is sufficiently analogous that r 14.8(2) should apply in terms of r 1.6.¹⁵ Moreover I consider variation is appropriate both in light of the Court of Appeal’s decision and the fact Ngāti Wāhiao did not earlier have an opportunity to respond.

[25] Because the application for leave to appeal was an interlocutory application, costs are not claimable under steps 37 and 40-43. That means Ngāti Whakaue is

¹³ Substantive CA Decision, above n 1, at [94] and Substantive HC Decision, above n 5, at [72]-[73].

¹⁴ The position taken by the learned authors of McGechan on Procedure (online looseleaf ed, Thomson Reuter,) at [HR26.14.01] is that such applications for leave to appeal to the Court of Appeal under cl 5(1)(a) or (b), sch 2 of the Arbitration Act 1996 are interlocutory applications. Given the similarity in the procedure under rr 26.14 and 26.19, there is no reason in principle why the same would not be true of applications for leave to appeal to the Court of Appeal under cl 5(1)(c).

¹⁵ See Lawson v Wenley (No 2) [2012] NZHC 1265 at [7].

entitled to $1,980 for the preparation and filing of the application only. As for the remaining steps, I accept that:

(a) Ngāti Whakaue relied on the Case on Appeal bundle at the leave hearing, so no costs are claimable for the preparation of a bundle for hearing;

(b) unspecified “office charges” of $168.70 are not recoverable disbursements;¹⁶ but

(c) I indicated in my decision costs were to include the appearance of second counsel, and I see no reason to order otherwise now.¹⁷

[26] Accordingly I vary my earlier costs order and award Ngāti Whakaue costs and disbursements in the sum of $9,405.

Orders

[27] Costs on the Stage One proceedings are to lie where they fall.

[28] Ngāti Whakaue is entitled to costs and disbursements totalling $29,879.25 associated with the Substantive HC Decision.

[29] Ngāti Whakaue is entitled to costs and disbursements totalling $9,405 associated with the Second Leave to Appeal to CA Decision.

Moore J

Solicitors/Counsel: Corban Revell, Auckland Mr Geiringer, Wellington

Mr Papageorgiou, Wellington

¹⁶ Opus International Consultants Ltd v Colac Bay Vision Ltd [2015] NZHC 2702 at [7].

¹⁷ Second Leave to Appeal to CA Decision, above n 7, at [34].