Huangarua Farm Limited v Martin HC Wellington CIV-2010-435-0037
[2011] NZHC 1084
•29 August 2011
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2010-435-0037
BETWEEN HUANGARUA FARM LIMITED Plaintiff
ANDDIANNE MARY MARTIN, JAMES WAREN MARTIN AND BRIAN JOSEPH BOURKE BEING THE TRUSTEES OF THE WAITAWA TRUST
First Defendants
ANDTHE SOUTH WAIRARAPA DISTRICT COUNCIL
Second Defendant
Hearing: On Papers
Counsel: C S Chapman for Plaintiff
G Allan for First Defendants
Judgment: 29 August 2011
JUDGMENT OF MILLER J ON COSTS
[1] This judgment responds to cross-applications for costs by the plaintiff and first defendant. No question as to costs arises against the second defendant, the South Wairarapa District Council.
[2] This proceeding sought access to farmland that was said to be landlocked. The relief claimed was an order that the first defendants transfer to the plaintiff sufficient land to afford the plaintiff reasonable vehicular access to their land, alternatively that they grant an easement to like effect. The precise description of the land to be transferred was not specified in the pleading, but as a matter of fact there were a number of more or less attractive options open. The first defendant denied
that the land was landlocked.
HUANGARUA FARM LIMITED V DIANNE MARY MARTIN, JAMES WAREN MARTIN AND BRIAN JOSEPH BOURKE BEING THE TRUSTEES OF THE WAITAWA TRUST HC WN CIV-2010-435-0037 29
August 2011
[3] The proceeding settled after I had taken a view of the land. The parties reached agreement on terms which were recorded in a handwritten agreement, under which the first defendant granted a right of way to the land on terms permitting up to two dwellings to be built there. The details were laid out in a plan attached to the agreement.
[4] Compensation was agreed separately. The parties agreed that I should not be told how much was paid, and further accepted that costs should be fixed by the Court. I recorded that agreement in my minute of 7 April 2011.
[5] Remarkably extensive affidavits and submissions have been filed. I regret that it has taken me some time to attend to them.
[6] The plaintiff bases its application on the proposition that as it secured an easement it is to be treated as having won the litigation. Costs should “follow the event”. Indeed, the plaintiff should have more than scale because the first defendant maintained a hopeless argument that the land was not landlocked.
[7] The first defendant says that it was willing throughout to discuss an easement providing just the sort of vehicular access that resulted from the agreement, and made an offer to that effect, specifically in a Calderbank letter. The access finally agreed is significantly less beneficial than that offered. While I have not been told what compensation was paid, the first defendant points out that it had asked in its earlier offer for the modest sum of $8,000 to $12,000. It is suggested that it was the question of compensation that was the sticking point earlier. It invites me to award it costs on a 2B basis.
[8] The plaintiff responds that the offer did not conform with the Rules in that, notably, it was not said to be without prejudice as to costs, and the agreement was significantly better than any offer made by the first defendant. I should not be drawn into speculation on the amount of compensation.
[9] Each side invites me to find that the other has acted unreasonably in its attitude to negotiations. The affidavits on each side are substantially directed to that issue.
[10] I am not prepared to award costs to either party, for several reasons. First, I do not accept that the settlement agreement is to be treated as tantamount to a judgment in the plaintiff’s favour. The case turned on the question whether the land was landlocked. That question, a difficult one in the circumstances, was never answered. The plaintiff’s contention that the first defendant’s position was hopeless is misconceived. It appears from Mr Chapman’s submissions that he at least has taken it from my questioning of Mr Allan in the course of his opening that the plaintiff was sure to win. Nothing could be further from the truth. I was closely interested in how the land came to be “landlocked” (it resulted from the acquisition of a road reserve by the first defendant from the Council, and there was more than a suggestion in the plaintiff’s case that it had been done in an underhand way). But I did not express an opinion that the land was landlocked. Access to it could have been gained from the plaintiff’s own land by bridging a creek, albeit at significant cost. I expressed interest in that question also. Plainly there was much scope for a sensible accommodation, and I encouraged counsel to pursue it, but to say that is to answer quite a different question.
[11] Second, I am in no position to compare the agreement with any previous offer. The comparison must rest in substantial part on a fact not known to me, the amount of compensation. And the comparison otherwise assumes that I am able to compare the offer and the settlement to ascertain, for example, whether the one affords a more useful turning circle than the other, or requires more or less impractical fencing than the other, or impedes stock movements more than the other. I observe too that the settlement includes a condition limiting the plaintiff to two dwellings on the site. Manifestly I cannot assess the value of that condition in the absence of evidence.
[12] Third, I am similarly in no position to judge who was the more intransigent, to the extent that that may bear on costs. I could not do so without a reference point, in the form of a decision on the merits of the case and, assuming the land to be
landlocked, the minimum remedy needed. Only then could I compare the result to
the parties’ offers.
[13] It is to be regretted that, having apparently reached a sensible settlement, the parties have expended so much effort on a fruitless quest for costs.
Miller J
Solicitors:
Macalister Mazengarb, Wellington for Plaintiff
Logan Gold Walsh Ltd, Masterton for First Defendants
0
0
0