(18 December 2024)

Home | Databases | WorldLII | Search | Feedback High Court of New Zealand Decisions You are here:   NZLII >> Databases >> High Court of New Zealand Decisions >> 2024 >> [2024] NZHC 3872 Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help Ngāti Paoa Trust Board v Auckland Council [2024] NZHC 3872 (18 December 2024) Last Updated: 13 January 2025 IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE CIV-2021-404-1749 [2024] NZHC 3872 UNDER the Judicial Review Procedure Act 2016 and the Declaratory Judgments Act 1908 IN THE MATTER of an application for judicial review and/or for declarations BETWEEN NGĀTI PAOA TRUST BOARD Applicant AND AUCKLAND COUNCIL First respondent ENVIRONMENT COURT Second respondent KENNEDY POINT BOATHARBOUR LIMITED Third respondent Hearing: On the papers Counsel: K S Feint KC and R L Pinny for applicant K Anderson KC and M C Allan for first respondent Date of judgment: 18 December 2024 JUDGMENT OF JAGOSE J [Costs] This judgment was delivered by me on 18 December 2024 at 11.00am. Pursuant to Rule 11.5 of the High Court Rules. .............................. Registrar/Deputy Registrar Counsel/Solicitors: K S Feint KC, Wellington K Anderson KC, Auckland R L Pinny, Barrister, Wellington Brookfields Lawyers, Auckland Insight Legal, Warkworth NGĀTI PAOA TRUST BOARD v AUCKLAND COUNCIL - Costs [2024] NZHC 3872 [18 December 2024] [1] After the Court of Appeal remitted the question if this Court’s costs awards “require[d] adjustment in light of the Trust Board’s partial success on appeal”, 1 as judicial review list judge, I now have the Board’s application for costs against the Council. [2] This Court had dismissed the Board’s 2021 application for judicial review of both: 2 (a) the Environment Court’s 30 May 2018 dismissal of appeals against and confirmation of resource consent for a marina on Waiheke Island issued by the Council to Kennedy Point Boatharbour Limited; 3 and (b) the Council’s 2013 and 2014 decisions to recognise a newly formed trust “as the mandated representative of Ngāti Paoa” for those resource consent purposes, notwithstanding an order of the Māori Land Court under s 30(1)(b) of Te Ture Whenua Māori Act 1993 the Trust Board then was the representative of Ngāti Paoa for those purposes. 4 Costs relevantly were awarded to the Council against the Board. 5 [3] The Court of Appeal set aside this Court’s costs awards, 6 explaining: 7 The Trust Board’s appeal has succeeded in part, in that we have found that the Council erred in determining (in 2013 and 2014) that that order made by the Māori Land Court under s 30 of TTWMA did not require it to recognise the Trust Board as the representative of Ngāti Paoa for the purposes of the RMA. While our finding on this issue has clarified the law in this area, it is of little practical consequence in the particular circumstances of this case ... The Trust Board has failed in relation to its other grounds of appeal and, overall, has failed to achieve its key objective of obtaining an order that the resource consents be set aside. Nevertheless, given that the parties have each had some 1 Ngāti Paoa Trust Board v Auckland Council [2024] NZCA 481 (Appeal decision) at [93]. 2 Ngāti Paoa Trust Board v Auckland Council [2022] NZHC 893 (Substantive decision) at [199]. 3 SKP Inc v Auckland Council [2018] NZEnvC 81 (Environment Court decision). The Court of Appeal noted “The s 30 order in favour of the Trust Board was revoked almost six years ago. If the resource consents were quashed and this matter was remitted to the Environment Court for a further hearing, both the Iwi Trust and the Trust Board would be entitled to make submissions, with neither entity being the sole authorised representative of Ngāti Paoa”: Appeal decision, above n 1, at [90(e)]. Ngāti Paoa Trust Board v Auckland Council [2022] NZHC 1377 (Costs decision) at [14]. Costs also were awarded to Kennedy Point Boatharbour Ltd against the Board, but have been resolved between those parties. 6 Appeal decision, above n 1, at [96]. 7 At [92]. measure of success, it is our view that the most appropriate outcome is that the costs of this appeal lie where they fall. [4] The Court of Appeal’s finding had little practical consequence in the particular circumstances of the case because: 8 The Trust Board was not denied an opportunity to oppose the Application due to the Council’s failure to notify it of the Application. Although the Council should have sent a copy of the Application to the Trust Board’s registered office (due to the existence of the s 30 order), its failure to do so was not materially causative of the Trust Board’s subsequent lack of involvement in the resource consent process. Further, given that the Trust Board was legally inoperative at the relevant time, it is not possible to infer what position it would have taken in respect of the Application, if it had had a quorum of trustees. [5] The Board now seeks the Council’s payment of 2B scale costs to the Board, on the basis “[i]n all material respects the Trust Board was successful against the Council”, citing the general principles “the party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds”, 9 and “so far as possible the determination of costs should be predictable and expeditious”. 10 [6] The Board’s reliance on such orthodoxy now is in stark contrast to its previous submission “the Court usually exercises significant discretion in the context of costs awards on judicial review proceedings because of the role of judicial review in upholding the rule of law”. 11 And the fundamental principle is all matters relating to costs of a proceeding “are at the discretion of the court”. 12 [7] I cannot see any basis on which it sensibly can be said the Council ‘failed’ with respect to the Board’s judicial review proceeding, collaterally challenging its issue of resource consent upheld on appeal to the Environment Court. To the contrary, the Court of Appeal upheld as “clearly correct” this Court’s decision the Board’s judicial review claims against the Environment Court’s decision had not been made out. 13 The Board’s attempt now to seize ‘success’ from those embers is unduly aggrandising, 8 At [87]. 9 High Court Rules 2016, r 14.2(1)(a). 10 Rule 14.2(1)(g). 11 Costs decision, above n 5, at [6]. 12 High Court Rules, r 14.1. 13 Appeal decision, above n 1, at [89]. irrespective of the importance of its recognition, whether to the Board itself or in its continued claim against the Council in negligence. [8] This Court had observed “[t]he main thrust of the [Board’s] case is against the Council”. 14 Except for its declaration of the Council’s non-contributory error, noting the Board then was “dysfunctional or legally inoperative”, 15 the Court of Appeal dismissed the Board’s appeal. 16 And it noted its reluctance in any event to set aside the resource consent, on grounds including: the Board’s inability to discharge its role as authorised representative at the time it should have been notified of the resource consent application; the interests of Ngāti Paoa nonetheless were before the Environment Court; and the Board’s challenge was significantly delayed. 17 [9] Given this Court’s costs orders have been set aside, and the Board has resolved matters with Kennedy Point Boatharbour Ltd, I therefore consider costs as between the Board and the Council are best borne by the party incurring them. I will so order. [10] As between the Board and the Council, costs are to lie where they fell. —Jagose J 14 Costs decision, above n 5, at [11]. 15 Appeal decision, above n 1, at [49]. 16 At [95]. 17 At [90]. NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.nzlii.org/nz/cases/NZHC/2024/3872.html