Doak v Rollander

[2016] NZHC 2319

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2015-485-1022 [2016] NZHC 2319

UNDER

Part 18 of the High Court Rules 2008

IN THE MATTER

of the Declaratory Judgments Act 1908

BETWEEN

WILLIAM NEVILLE DOAK First Plaintiff

AND

CHILDRENʼS HEALTH CAMPS - THE NEW ZEALAND FOUNDATION FOR CHILD AND FAMILY HEALTH AND DEVELOPMENT KNOWN AS STAND CHILDRENʼS SERVICES

Second Plaintiff

AND

BRETT DAVIS ROLLANDER, KIRSTY- ANNE ROLLANDER AND VAREENA STEVENS AND JILL BURKE, RICHARD BURKE AND MONICA YOUNG

First Defendants

AND

PATRICIA KAY HUFF Second Defendant

AND

STEPHEN JOHN MACKLIN AND ADELE MARGARET MACKLIN Third Defendants

AND

ROBERT HAROLD WYLIE WAKELIN, JOANNE ISABELL WAKELIN AND BURROWES TRUSTEE SERVICES (2013) LIMITED

Fourth Defendants

AND

NEIL TREVOR TURNER, JEAN ELIZABETH TURNER AND KAPITI TRUST COMPANY LIMITED

Fifth Defendants

AND

CHRISTOPHER JOHN LAMAIN AND CAROL ANN LAMAIN

Sixth Defendants

DOAK & ORS v ROLLANDER & ORS [2016] NZHC 2319 [29 September 2016]

ANDCAROL LILLIAN WEBSTER, STUART GORDAN WEBSTER AND HERCUS KING TRUSTEES LIMITED

Seventh Defendants

Hearing:	On Papers
Counsel:	P S J Withnall for Plaintiffs M Riordan and N Jessen for First, Third, Sixth and Seventh Defendants
Judgment:	29 September 2016

JUDGMENT OF SIMON FRANCE J (Costs/stay of costs award)

[1]      Following upon the judgment of 29 July 2016, the unsuccessful defendants seek orders that:

(a)       costs lie where they fall; or alternatively there be reduced costs;

(b)any award of costs be stayed until the determination of an appeal brought by the seventh defendant.

[2]      The substantive proceeding concerned the interpretation of a provision in a restrictive covenant.  The second plaintiff wishes to purchase land in a subdivision from the first plaintiff.   It sought a declaration that its intended use (what was previously known as a children’s health camp) would not breach  a term of the restrictive covenant prohibiting commercial activity.   A declaration to that effect issued.

[3]      The  proceeding  was  actively  defended  by  four  of  the  seven  named defendants.    One of them,  the seventh  defendant,  has  filed appeal  proceedings. However all four defendants who would be liable to pay costs if an award is made seek a stay pending determination of the appeal.

Costs lie where they fall

[4]      The respondents emphasise that the proceedings were for a declaration, and were for the plaintiffs’ benefit.  It is submitted the second plaintiff could have just completed the proposed purchase and seen if any objection was taken to its use. Instead  it  chose to  make the obtaining of such a declaration  a condition  of its purchase.

[5]      Emphasis is placed on the costs discretion afforded by s 13 of the Declaratory Judgments Act 1908 which it is said is a departure from the normal rule that costs follow the event.   On that matter the  second  plaintiff refers to  a passage from Waimauku Estate Ltd v Jack and Anor which holds that the normal costs principles

contained in the Rules apply.1

[6]      The form  of  proceeding is  not  pivotal  here.    It  is  clear that  the  second plaintiff’s proposed use was strongly opposed by some neighbouring residents who made it clear all steps would be taken in opposition.  The defendants conducted the proceeding in an adversarial way. That term is used to distinguish the matter from an approach where one is just assisting the Court.  There is no public dimension to the proceeding.

[7]      In my view costs should follow the event in the normal way.

Reduced costs

[8]      The case for reduced costs seeks first to limit costs to the period from when the statement of defence was filed.  This is because the plaintiffs, as parties to the sale and purchase agreement, contracted with each to seek a declaration.  They were obligated to file the proceedings and the defendants submit they should not have to meet those costs.

[9]      The second plaintiff disputes this latter aspect and says pre-proceedings discussions made it plain that the application for a declaration was needed and would

be opposed.   That certainly accords with my sense of the matter and  I do not

1      Waimauku Estate Ltd v Jack and Anor HC Auckland CIV-2006-404-6585, 11 July 2007.

consider the term  in  the sale and  purchase agreement  provides  any basis  for a departure from the normal rules.

[10]     The other major items which the defendants seek to exclude are the answer to interrogatories, and plaintiffs’ preparation of affidavits.  The argument advanced is that the need for interrogatories was due to inadequate information from the plaintiff, as were the affidavits.  I do not accept this.  The defendants had a particular view as to what would establish commerciality and pursued information to support that. That was a legitimate course but the interrogatories were a procedural step of their choice.   I also note the plaintiffs’ position that the defendants were on notice that further evidence was to be filed but chose not to wait.

[11]     I am satisfied the plaintiffs are entitled to costs and reject the applications for no costs, or reduced costs.

A stay of the costs award

[12]     One defendant is appealing.   The second plaintiff queries how firmly it is being pursued but I proceed on the basis that it is intended to progress the appeal in the normal way.

[13]     The basis for the stay is weak.  There is no suggestion that in its absence the appeal could not proceed, and no evidence was filed to support that proposition.  It is suggested the plaintiffs’ litigation has been funded by a benefactor but I accept Mr Withnall’s advice that it is incorrect.

[14]     The fact of an appeal is not itself a basis for a stay.  Further, it is a factor that three of the four liable defendants cannot rely on since they are not appealing.   I consider  the  second  plaintiff  captures  the  defendants’ position  accurately  when describing it as being that they would prefer not to pay until the fate of the appeal is known. That does not provide a basis for a stay which is declined.

Conclusion

[15]     The first, third, sixth and seventh defendants are liable to 2B scale costs together with reasonable disbursements to be fixed by the Registrar if required.  The normal rule of joint and several liability applies.   As noted in the judgments, the

Council is to carry its own costs, but is not otherwise liable to pay costs.

Simon France J