Fisher v Phillips

[2012] NZHC 2930

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV 2010-409-001985 [2012] NZHC 2930

BETWEEN  AARON GEORGE FISHER AND AMY JOCELYN FISHER

Plaintiffs

ANDBAYDON JOHN PHILLIPS AND SARDINERO TRUSTEES LIMITED First Defendants

ANDBAYJAH DEVELOPMENTS LIMITED Second Defendant

Hearing:         (On Papers)

Counsel:         D A Wood for Plaintiffs

PHB Hall for First-Named First Defendant
S M Dwight for Second-Named First Defendant
T McKenzie for Second Defendant

Judgment:      12 November 2012

COSTS JUDGMENT OF WHATA J

[1]      The plaintiffs seek costs from the first defendants in this matter, including a

50% uplift on the issuing of proceedings and on the first application for injunction.

[2]      The plaintiffs say that they were largely successful in achieving the outcomes sought, namely cessation of a development proposal in contravention of a restrictive covenant over the defendants’ land.

[3]      The first defendants are separately represented.   The second-named first defendant opposes costs, in short, on the basis that it took no active part in the

proceedings and had no involvement in the relevant proposed development.

FISHER AND FISHER V PHILLIPS AND SARDINERO TRUSTEES LIMITED HC CHCH CIV 2010-409-

001985 [12 November 2012]

[4]      The  first-named  first  defendant,  Baydon  Phillips,  also  opposes  the  costs order, but if a costs order is to be made then an award should be made in favour of the first-named first defendant on the interlocutory application to rescind or vary which succeeded in part.

Assessment

[5]      Rule 14.1 confers a discretion on this Court to award costs.  Normally, costs are awarded to the successful party.  This case is somewhat interesting in the sense that  the  plaintiff  has  succeeded  firstly  in  obtaining  an  interim  injunction  on essentially an ex parte basis with the ultimate effect that the development did not proceed.  However the first-named first defendant succeeded in obtaining a variation to those ex parte orders that would have allowed development to proceed on a qualified basis.

[6]      Notably, it was not necessary to finally determine the respective claims of the parties.  I was satisfied that the plaintiffs had a seriously arguable case, but I was also satisfied that in terms of the balance of convenience some development should be allowed to proceed given the permissible baseline of development enabled by the restrictive covenant and the related effects of that development on the plaintiffs.

[7]      In those circumstances, the plaintiffs should have an award for costs on scale relating to their success in the ex parte proceedings.   That costs award should, however, relate only to the first-named first defendant.  I accept the submissions of Sardinero Trustees Limited that they did not take an active role in either of the proceedings to date and would appear were not a cause of the underlying conflict. However the award of costs to the plaintiffs should be offset by the partial success of the first-named first defendant in obtaining a variation to the interim orders that were also defended.  He is entitled to scale costs on that application, reduced by 25% to reflect the partial nature of his success.

[8]      Finally, I can see no basis for uplift.  Both parties asserted claimed rights and both parties were vindicated at least in part.

[9]      I will leave it to the parties to resolve the quantum of costs between them.

Solicitors:

Alan Jones Law Partnership, Auckland (Counsel: D A Wood, Auckland)

Saunders & Co, Christchurch, for First-Named First Defendant (Counsel: PHB Hall, Christchurch) Cavell Leitch Pringle & Boyle, Christchurch, for Second Named First Defendant

(Counsel: S M Dwight, Christchurch)

Williams McKenzie, Rangiora, for Second Defendant (Counsel: T M McKenzie)