Bain v Thorne - [2021] NZHC 3051

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-001265

[2021] NZHC 3051

UNDER The Property Law Act 2007, ss 316–318

BETWEEN

HAMISH WALKER BAIN

Applicant

AND

PETER ROWLAND THORNE and ROSEMARY MAY THORNE

First Respondents

CYRIL BRIAN WRIGHT
Second Respondent

MINISTER OF CONSERVATION

Third Respondent

Hearing: (On the papers)

Judgment:

11 November 2021

COSTS JUDGMENT OF VENNING J

This judgment was delivered by me on 11 November 2021 at 2.15 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors/Counsel:
TM Bates & Co, Auckland Duthie Whyte, Auckland A Gilchrist, Auckland

BAIN v THORNE [2021] NZHC 3051 [11 November 2021]

Introduction

[1] On 15 October 2020 the Court made orders by consent on Mr Bain’s application to vary/modify existing easements affecting the property owned by the applicant and the respondents.

[2] All that remains to be resolved is the issue of costs. The file was referred to me as duty Judge to deal with costs. Counsel have exchanged memoranda on that issue.

[3] The applicant seeks costs against the first respondents only. He claims 50 per cent of indemnity costs calculated at $32,190.34 or, in the alternative, an uplift of 75 per cent on scale costs, again calculated on an initial 50 per cent basis. In total on that basis he seeks $12,067.34.

[4] The first respondents submit that costs should lie where they fall. Alternatively, if an order for costs is to be made, then they submit it should be no more than one-third of scale costs.

Background

[5] The parties own property at Waiheke Island. The applicant wanted to vary or modify existing easements relating to the use of a right-of-way that runs over his two properties and an adjoining property owned by the first respondents. The modification sought was essentially to allow the automation of gates so they responded to a pin entry. There were two relevant easement instruments:

(a)the Wright easement provided right-of-way to the applicant, together with the first and second respondents. The applicant sought to extinguish the right of the second respondent, Mr Wright, insofar as he enjoyed a right-of-way over the applicant’s land;

(b)the second easement granted right-of-way to the Minister of Conservation over the first and second respondents’ properties. The applicant sought to modernise this in the same way as the Wright

easement as effectively there was only one common access road covered by the two easements.

[6] The applicant was able to agree the position insofar as the Department of Conservation easement was concerned with the Minister of Conservation prior to proceedings being issued but did not reach agreement with the first and second respondents prior to the issue of proceedings.

[7] The applicant does not pursue costs against the second respondent, Mr Wright, having resolved matters with him. The applicant does however seek costs against the first respondents. Mr Bates submits that the first respondents’ response to the “reasonable request” by the applicant to modify…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bain v Thorne

Details

AGLC: Bain v Thorne [2021] NZHC 3051
Case: [2021] NZHC 3051
Decision Date: 11 November 2021

CaseChat Overview and Summary

In the case of Bain v Thorne, the applicant, Hamish Walker Bain, sought to vary or modify existing easements that affected his property and that of the respondents. The matter was ultimately resolved by consent orders. The sole remaining issue was the determination of costs. The applicant sought costs against the first respondents, Peter Rowland Thorne and Rosemary May Thorne, claiming either 50% of indemnity costs or an uplift of 75% on scale costs. The first respondents argued that costs should lie where they fell or, if costs were to be awarded, they should be limited to one-third of scale costs. The Court considered the nature of the proceedings, which was an application to modify easements, and the fact that the first respondents did not file any opposition. The Court also considered the decisions in North Holdings Development Ltd v WGB Investments Ltd and Synlait Milk Ltd v New Zealand Industrial Park Ltd, which held that an unsuccessful objector to an application to modify an easement should not be required to pay the applicant's costs unless they acted unreasonably. The Court found that the first respondents did not act unreasonably in raising the issues they did during the course of the applicant's request to alter the easements and the subsequent proceedings.

The Court declined the applicant's application for costs, finding that the first respondents did not act unreasonably in opposing the modification of the easements. The Court held that costs were to lie where they fell. This decision aligns with the principle established in North Holdings and confirmed in Synlait, that an unsuccessful objector to an application to modify an easement should not be required to pay the applicant's costs unless they acted unreasonably. The Court found that the first respondents did not act unreasonably in this case, and therefore, the applicant was not entitled to costs against them.

Orders