Totally Tourism Ltd (TTL) has been ordered to pay $14,000 in costs to the Arthurs Point Protection Society Inc and Barry Walters by Environment Court Judge Jon Jackson, for what was described as a case which was "poorly presented" and "came close to an abuse of process".
In his decision, dated June 29, Judge Jackson said a group of 21 people, including Mr Walters, lodged an appeal on January 12, 2009 against a Queenstown Lakes District Council decision to grant resource consent to Totally Tourism Ltd relating to intended helicopter take-offs and landings from a helipad at Gorge Rd.
The individuals were submitters on the resource consent application and later became an incorporated society.
A pre-hearing conference was held on July 31, 2009, with an evidence exchange timetable established. Court-assisted mediation was held on October 28, 2009, and on May 7, 2010, the parties were advised the appeal was likely to be set down for a hearing in the week of October 4 or 11, 2010.
On August 5, TTL lodged a memorandum with the court, requesting leave to withdraw the resource consent application at the heart of the proceedings, with the society lodging an application for costs on September 2, 2010, seeking $40,839 - $18,138 of that as legal costs, $22,659 as expert evidence and $132 for "disbursements (photocopying)".
Judge Jackson said it was "undeniable" TTL's actions in a related appeal had a flow-on effect for this appeal.
"Withdrawal of an appeal immediately prior to a hearing is likely to result in costs against that part.""But, at that stage, the society had obtained legal advice ... [and] had embarked on preparation for a hearing.
"Experts had been engaged and briefs of evidence produced, all of which caused the society to incur costs which became unnecessary when TTL advised it was to make a fresh resource consent application two months out from the hearing date.
"I consider TTL to have put the society to unnecessary expense and so I find that it is entitled to an award of costs.
"TTL's case was poorly presented and comes close to an abuse of process, since its decision to make a fresh resource consent application came late in the proceedings after a hearing date had been set and the society had commenced preparation for a hearing, incurring unnecessary legal and expert costs."
Judge Jackson deducted two invoices and said the starting point for costs was $35,200 and while a starting point of between 25% and 33% was appropriate, Judge Jackson awarded 40% in costs, with the Queenstown District Court listed as the court the order could be filed in for enforcement purposes if necessary.
