Balmoral Farm Limited v Otago Regional Council

[2014] NZHC 2411

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV 2013-412-000463 [2014] NZHC 2411

BETWEEN

BALMORAL FARM LIMITED

Plaintiff

AND

OTAGO REGIONAL COUNCIL Defendant

Hearing:	(On Papers)
Counsel:	C S Withnall QC and C J Lucas for Plaintiff A J Logan and S Anderson for Defendant
Date:	2 October 2014

FINAL JUDGMENT OF WHATA J

[1]      In my judgment of 14 August 2014 I determined that reference at cl 3(e) of the lease between the parties to improvements includes “clearing, grassing and draining”.1

[2]      I further indicated to the parties that the declaration sought by the plaintiff was too broad and I sought assistance from the parties to formulate a declaration in accordance with my findings.2  They have now done this.

[3]      The declaration will read:

Clause 3(e) of the lease between the parties hereto presently comprised in identifier  OT  18D/192  requires  the  annual  ground  rent  for  the  land comprised and described in the lease to be fixed without taking into consideration any improvements thereon, including any land developments such as clearing grassing and draining.

1      Balmoral Farm Ltd v Otago Regional Council [2014] NZHC 1815 at [59].

2 At [60].

BALMORAL FARM LIMITED v OTAGO REGIONAL COUNCIL [2014] NZHC 2411 [2 October 2014]

[4]      The  only  remaining  issue  is  as  to  costs.     There  are  two  points  of disagreement, namely as to whether the plaintiff should be entitled to costs for the agreed statement of facts, and the sealing of judgment.

[5]      I accept that the production of an agreed statement of facts ought to be addressed  by  way  of  costs  order  and  the  time  claimed  is  reasonable.      It  is appropriate that this costs claim be through item 30 of the High Court Rules, sch 3 as it is the closest comparable item.

[6]      It  appears  that  the  sealing  of  the  judgment  relates  only  to  interlocutory judgments and accordingly no costs are claimable in this respect.   Further, to the extent that Balmoral is seeking to utilise item 29 by analogy to account for its time in drafting the declaration, I decline to permit costs for this.

[7]      There was no objection to the remainder of the costs and disbursements claimed by Balmoral.   Otago Regional Council is therefore ordered to pay to Blamoral $33,948.50 comprising $31,442 in costs and $2,506.50 in disbursements, subject to Mr Lucas confirming that these costs do not exceed actual costs.

Solicitors:

Lucas and Lucas Limited, Dunedin

Ross Dowling Marquet Griffin, Dunedin