Fox v Hamilton

[2025] NZHC 1873

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2023-409-123

[2025] NZHC 1873

UNDER

Sections 327 and 328 Property Law Act 2007

IN THE MATTER

of an application in respect of landlocked land

BETWEEN

HENRY ALLAN FOX and MARIE PATRICIA MUHL

First Applicants

NATHALIE FREDERIQUE GIRAUDON and EMMANUEL STAUDER

Second Applicants

JONATHAN ROBERT SMITH,

BEVERLEY ANN WALLS and PETER MARK WALLS

Third Applicants

MICHELLE HELEN SNAPE

Fourth Applicant

PHILIP LAURENCE LEES

Fifth Applicant

DONALD GORDON MICHAEL and KAREN HILDA MICHAEL

Sixth Applicants

AND

LISEL BRITTA HAMILTON

Respondent

Hearing:

On the papers

Appearances:

T C Daley for Applicants

L B Hamilton (Respondent) in person

Judgment:

9 July 2025

FOX v HAMILTON [2025] NZHC 1873 [9 July 2025]

JUDGMENT OF OSBORNE J

[costs]

[1]                 The applicants were successful on an application for an order granting access to landlocked land. By my judgment dated 30 August 2024 I made a range of orders and reserved the costs and disbursements of the proceeding, for memoranda to be filed if the parties did not agree on costs.1

[2]                 Memoranda were filed. By my judgment dated 19 November 2024 I awarded costs to the applicants. The respondent was ordered to pay costs of $32,114.37 and disbursements of $20,707.64.

[3]                 To implement the terms of the judgment, the applicants’ solicitors needed to have completed a covenant instrument and (by the respondent) the A&I form required for land transfer purposes. Following further communication between the parties in relation to those matters, I issued further directions on 13 December 2024 requiring the respondent to sign and return the A&I form in an identified manner and directing the Registrar to sign the A&I form on behalf of the respondent if the respondent failed to comply with the court’s direction.2

[4]                 In the 13 December 2024 directions I reserved the costs and disbursements incurred by the applicants since the 30 August 2024 judgment had issued.

[5]                 The respondent failed to comply with the A&I direction. The applicants therefore had the Registrar sign the A&I form on behalf of the respondent.

Application for costs

[6]                 The applicants now seek the costs incurred in relation to seeking the further directions obtained on 13 December 2024 and in obtaining the completion of the A&I form. They seek costs and disbursements of $8,823.20 on an indemnity basis, having

1      Fox v Hamilton [2024] NZHC 2479 at [57].

2      CIV-2023-409-123 Fox v Hamilton Minute 13 December 2024 (Osborne J).

regard  to  the  respondent’s  non-compliance  with  court  directions.    They invoke r 14.6(4)(b) High Court Rules 2016.

[7]                 Alternatively, the applicants seek increased costs for four memoranda on the basis of a 50 per cent uplift above scale ($5,736), again on the basis the respondent contributed unnecessarily to the time and expense of the proceeding by failing to comply with directions of the court. Rule 14.6(3)(b)(i) is invoked in that regard.

[8]                 The respondent submits it would be appropriate that no costs order be made. Her memorandum focuses on the dealings between the parties leading up to the court’s 13 December 2024 directions. She identifies correctly that through discussions between the parties she had obtained an additional provision in the documentation to protect her interests.

Discussion

[9]                 There were aspects of  the  respondent’s  conduct  in  the  period  after  the  30 August 2024 judgment was delivered that did not assist the process of having the directed right of way easements registered. But the discussions did result in amendment of documentation. Developments of that kind can reasonably be anticipated, even when the parties are fully co-operative, and I do not consider it appropriate that costs or disbursements be awarded to the applicants in relation to the period preceding the 13 December directions, by which the final form of the A&I was approved.

[10]            The situation since 13 December 2024 is entirely different. The respondent has given no explanation for her continued failure to sign the A&I form as directed by the court, resulting in the applicants having to approach the Registrar for the form to be completed.

[11]            I am satisfied it is appropriate to award indemnity costs to the applicants for the period after 13 December 2024 until the Registrar completed the A&I form. As the solicitors’ invoice dated 18 December 2024 does not discretely identify the portion of costs for that period, the order below will provide a mechanism for fixing the cost order.

Order

[12]I order:

(a)The respondent is to pay to the applicants their reasonable costs on a solicitor/client basis incurred in relation to the completion of the A&I form as incurred in the period from 13 December 2024;

(b)The applicants’ said reasonable solicitor/client costs are to be fixed by the Registrar on the basis of a Memorandum attaching a detailed proforma invoice. The applicants’ Memorandum is to include a statement as to whether or not any applicant is registered for GST and entitled to a GST input credit. In the event an applicant is registered for GST, counsel is to confirm that the applicants accept the sum fixed by way of costs should exclude the identified value of that credit.

Osborne J

Solicitors:
Anthony Harper, Christchurch

Copy to:
Mrs L B Hamilton (Respondent)