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Blakesfield Limited v Foote

Blakesfield Limited v Foote

Case [2016] NZHC 1354 22 June 2016

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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2014-409-553 [2016] NZHC 1354

BETWEEN
BLAKESFIELD LIMITED

Plaintiff

AND

AYLEAH VERONICA FOOTE,

LEE FOOTE AND SCOTT FRANCIS WHITAKER

Defendants

Hearing:
17 June 2016

(On the papers)

Appearances:

K Clay and G Cooper for Plaintiff
R Raymond for Defendants

Judgment:

22 June 2016

JUDGMENT OF MANDER J

[1] Blakesfield Limited (Blakesfield) developed a residential subdivision at Prebbleton, adjacent to the property of Ayleath Foote, Lee Foote and Scott Whitaker (the Defendants). Blakesfield brought an action in nuisance alleging that a line of 38 eucalytpus trees (the trees) located on the defendants’ land encroach onto its land.

[2] In a judgment released on 11 June 2015, I found that Blakesfield had established its case there was an actionable nuisance.1 I ordered that six trees were to be removed, six were able to remain subject to conditions, and one was able to remain provided it was trimmed such that there was no encroachment whatever.

[3] In addition, at trial it was confirmed that the defendants’ had agreed to

voluntarily remove 14 trees.2 Further, in Blakesfield’s claim as pleaded, it

encapsulated a total of 38 trees. At trial only 27 remained in issue as it was clear that

1 Blakesfield Ltd v Foote [2015] NZHC 1325.
2 At [14].

BLAKESFIELD LIMITED v FOOTE & ORS [2016] NZHC 1354 [22 June 2016]

the other 11 were not adjacent to Blakesfield’s land as it had sold the relevant

sections earlier.3

[4] Following the release of that judgment, the parties have been unable to agree on the issue of costs. Blakesfield seeks costs on a 2B basis totalling $47,163. It also seeks disbursements in the sum of $34,951.44. The total award sought by Blakesfield is $82,144.44. In response, the defendants say that each party has achieved some measure of success and the appropriate award is that costs should lie where they fall.

Costs principles

[5] It is common ground that costs are at the discretion of the Court.4 Though the discretion is a wide one it is not unfettered and must be exercised judicially. There is a presumption that costs will follow the event in favour of the successful party.5
Matters can be more difficult in cases where each party had some success. In Packing In Ltd (in liq) Formerly Known As Bond Cargo Ltd v Chilcott, Tipping J, delivering the judgment of the Court, commented:6

[5] In a case such as the present, where in broad terms each party has had similar success, we do not consider it helpful to focus too closely on the question which party has failed and which has succeeded. Costs in a case such as this should rather be based on the premise that approximately equal success and failure attended the efforts of both sides. To that starting point should be added issues such as how much time was spent on each transaction or group of transactions in issue, and any other matters which can reasonably be said to bear…

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 Blakesfield Limited v Foote

Details

AGLC: Blakesfield Limited v Foote [2016] NZHC 1354
Case: [2016] NZHC 1354
Decision Date: 22 June 2016

CaseChat Overview and Summary

Blakesfield Limited brought an action against Ayleath Foote, Lee Foote and Scott Whitaker for an actionable nuisance caused by a line of 38 eucalytpus trees (the trees) located on the defendants’ land that encroached onto Blakesfield’s land. In a previous judgment, the Court found Blakesfield had established its case and ordered the removal of six trees, permitted six to remain subject to conditions, and permitted one to remain provided it was trimmed such that there was no encroachment. The defendants agreed to voluntarily remove 14 trees. In the present proceeding, Blakesfield sought costs on a 2B basis totalling $47,163 and disbursements in the sum of $34,951.44, for a total of $82,144.44. The defendants argued each party had achieved some measure of success and costs should lie where they fell. The defendants also argued that certain settlement offers were not admissible due to the absence of the phrase “without prejudice save as to costs” and that the proceeding should have been filed in the District Court. The Court found Blakesfield was substantially successful in its proceeding, though the defendants also had some success. The Court found the defendants were entitled to proceed on the basis the “without prejudice” communications would not be disclosed, and the remaining correspondence favoured Blakesfield. The Court also found the proceeding was properly filed in the High Court. The Court found the appropriate costs award was that the defendants pay Blakesfield costs on a 2B basis, in accordance with the High Court Rules less a discount of 35 per cent to reflect the partial success the defendants had in resisting the claim as advanced by Blakesfield. The Court also made adjustments to the disbursements claimed by Blakesfield and ordered the defendants to pay Blakesfield costs in the sum of $24,705.85 and disbursements in the sum of $18,359.29.

Orders