The Resource Management Act 1991 post-2009 amendment is clear that costs will be borne by a trade competitor involved in anti-competitive behaviour. Recent case law confirms that there is also a higher likelihood of a costs award for unsuccessful appeals by a trade competitor filed prior to the 2009 amendment.

The Environment Court in Envirowaste Services Ltd v Auckland Council [2011] NZEnvC 209 confirmed the decision of the Auckland Council to grant consent to Winstone Aggregates (Winstone) for a quarry at Three Kings, Auckland. The Council and Winstone made an application for costs against Envirowaste Services Limited (ESL).

The Court noted that:

  • While there was an unfettered right for a trade competitor to appear before the Court, it must bring with it a duty to act responsibly, and in particular, not to raise competition matters even in another guise;
  • There was an unmeritorious technical argument that was re-litigated from the first instance hearing, and supported by an expert witness which was considered an advocate of the appellant;
  • ESL had accepted it was a trade competitor; and
  • There was no guarantee a hearing would have been avoided if ESL were not involved, as various local interest groups also pursued the matter to hearing.

The Court considered there were grounds for increasing the award of costs in favour of Winstone ($200,000 granted of the $700,000 sought) and the Council ($37,000 granted of the $115,000 sought).

The award did not reimburse even a majority of the costs incurred, but was a significant sum and gave a clear signal for caution in cases of trade competition and where witnesses are closely linked to the party being advised.