Rarotongan Beach Resort & Spa Ltd v Tepa [2009] CKCA 2; CA 7.2008 (10 July 2009)

IN THE COURT OF APPEAL OF THE COOK ISLANDS
HELD AT RAROTONGA

CA 7/08

BETWEEN

THE RAROTONGAN BEACH RESORT & SPA LIMITED
Appellant

AND

TERI TEPA, IAN FORBES and MOEHAU IRVING
First respondents

AND

NATIONAL ENVIRONMENT SERVICE
Second respondent

AND

ISLAND ENVIRONMENT AUTHORITY FOR RAROTONGA
Third respondent

Coram: Barker JA (Presiding)
Fisher JA
Grice JA

Hearing: 8 July 2009

Counsel: P David I Hikaka for appellants
C Little Mr S Hood for respondent

Judgment: 10 July 2009

JUDGMENT OF THE COURT

Introduction

Chief Justice awarded the first respondents costs of $58,380.03. Of that sum he directed the appellant to pay $11,676. From that decision the appellant appeals. The second and third respondents abide the decision of the Court.

The costs order

[2] Following judgment at first instance, as modified on appeal, the Chief Justice awarded the first respondent costs of $58,380.03 made up as follows:

66% of legal costs	$33,039.92
VAT	$4,129.99
Disbursements	$2,035.00
66% of expert fees	$19,174.32

[3] Of the total, he ordered the appellant to pay 20%, namely $11,676.00

The appeal

[4] An award of costs is the exercise of a judicial discretion. On appeal, the court will not interfere unless the court at first instance acted on a wrong principle, failed to take into account a relevant consideration, took account of an irrelevant consideration, or was plainly wrong. We are not persuaded that any different approach is called for in the Cook Islands notwithstanding the New Zealand Supreme Court decision of Austin Nichols v Stichting Lodestar [2007] NZSC 103.

[5] The discretion over the incidence and amount of costs is based upon a wide range of diverse considerations which the court at first instance is peculiarly well placed to assess. Consequently appellate courts are particularly slow to interfere with costs orders in the absence of clear reasons for doing so.

[6] In the present case Mr David sought to rest the appeal on three suggested errors of principle:

[a] Treatment of the evidence of the first respondents' witness Mr Dorrell as expert evidence warranting expert fees

[b] The award of costs against a private individual seeking to support the award of a public authority

[c] Failure to take into account the manner in which the first respondent had conducted its case

[7] We deal with those in turn.

(a) Fees of Don Dorrell

[8] In the presentation of its case the first respondent relied in part upon the evidence of Don Dorrell. Don Dorrell was an adviser on coastal management. He swore four affidavits which annexed extensive plans, reports and photographs. The first respondent paid him $29,052 for his professional services.

[9] Mr David submitted that no fees allowance should be made on an expert basis because Mr Dorrell was not an expert. We accept that he had no formal qualifications. However he had been accepted as an expert in coastal management in the Cook Islands for many years. Further, in Cook Islands litigation it may not always be practicable or economic to procure the level of expertise available in larger countries like New Zealand. The Chief Justice expressly stated that he found Mr Dorrell's evidence useful.

[10] Mr David also submitted that in advocating the first respondents' cause, Mr Dorrell lacked impartiality and went outside the area of his expertise. We agree. Parts of his affidavits should not have been filed. However the Chief Justice expressly stated that he would ignore the invective and concentrate on the primary facts.

[I1] We note also that only 66% of Mr Dorrell's fees were awarded. This more than accommodates any reservations there might have been over expert fees. This ground of appeal is rejected.

(b) Private individual supporting public authority

[12] Mr David submitted that as his client was merely acting in good faith to support public authority decisions it should not have been burdened with costs. He supported this submission by reference to ancient English authority with respect to orders for mandamus.

[13] The general rule is that costs follow the event. Those who fail after actively arguing a case in court will normally be required- to contribute to the costs of the successful party.

[14] As the Chief Justice pointed out, in the present case the appellant actively supported the submissions of the Service and the Authority and in addition, quite separately from them, strongly argued that there was no proper basis for relief and that relief should be refused in the Court's discretion.

[15] We see no reason to interfere with the Chief Justice's approach. This ground of appeal is rejected.

(c) Manner in which first respondent conducted its case

[16] Mr David submitted that the first respondent ran the case in a manner that unnecessarily increased costs and that the Chief Justice erred in not taking this into account when making his award. Under this heading Mr David referred to four changes of pleading, failure to join the appellant in the proceeding at the outset, and the pursuit of many causes of action which did not ultimately succeed.

[17] We are informed that these matters were advanced before the Chief Justice. He concluded that taking into account the appellant's active role in the proceedings and "all other relevant circumstances" the appellant should pay 20% of the first respondents' costs. The first respondents will not be receiving a full indemnity for costs.

[18] We are not persuaded that on this or the other grounds we should interfere with the Chief Justice's award.

Result

[19] The appeal is dismissed with costs to the first respondents in the sum of $2000 plus reasonable travel and accommodation expenses to be fixed by the Registrar.

SIGNED this 10^th day of July 2009

Barker JA

Fisher JA

Grice JA