Iakapo v Rutherford
[2012] NZHC 2857
•31 October 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2012-404-001680 [2012] NZHC 2857
UNDER the Judicature Act 1908, Section 16, Section 236A; the Property Law Act 2007, Section 297(2)(c), and under Schedule 5; the Fencing Act 1978, Part 2, Section 4, Section 8, Section 14(1)(b), Section 26
IN THE MATTER OF an application for a restraining order pursuant to Part 3, Sections 9, 16, 18 of the Harassment Act 1997
BETWEEN OLATAGA IAKOPO First Plaintiff
ANDJANICE HANIF Second Plaintiff
ANDCHARLOTTE RUTHERFORD AND ANDREW RUTHERFORD Defendants
Hearing: 31 October 2012 (On the Papers)
Counsel: O Woodroffe for the Plaintiffs
D M Hughes and L M Van for the Defendants
Judgment: 31 October 2012
JUDGMENT OF DUFFY J [Re Costs]
This judgment was delivered by Justice Duffy on 31 October 2012 at 12.30 pm, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
IAKOPO and ANOR v RUTHERFORD HC AK CIV-2012-404-001680 [31 October 2012]
[1] This judgment should be read together with Iakopo and Anor v Rutherford
HC Auckland CIV-2012-404-1680, 3 July 2012 (the July judgment).
[2] In the July judgment, I granted the plaintiffs the order they sought in paragraph 1(b) of their application, with the additional direction that the subject gates be kept open in a manner that sees them open outwards over the servient land (being the defendants’ land).
[3] At [49], I noted that if the gates could not be left open over the servient land, the question of whether the plaintiffs should pursue the application for an order removing the gates, as part of their application for interim relief, would need to be considered. Accordingly, I reserved leave to the parties to return to Court on the question of whether the gates should be left opening outward over the servient land, or, instead, be removed until such time as the issue is finally determined.
[4] Leave was also given to the parties to file an application for costs.
Further submissions on question of interim relief
[5] Since delivering that judgment, Charlotte Rutherford, one of the defendants, has filed an affidavit in which she explains why the defendants considered they were entitled to erect the fence and gates in question. Much of what is said in the affidavit traverses issues that were already dealt with in the judgment and I do not propose to go over them now. What is said in the affidavit does not detract from the legal findings I have made in terms of the gates, and the conclusion I reached that there was no lawful basis for the gates to open inwards over the dominant tenement (being the plaintiffs’ land).
[6] The defendants submit that should the agreement the plaintiffs entered into with the local territorial authority and the plan attached to that agreement be found to run with the land, there is no serious question to be tried. In addition, the defendants maintain that there was no reason for them not to believe the agreement in the plan showing how the gates open did not run with the land.
[7] In the July judgment, I found that the agreement and the plan attached to it did not run with the land. This finding was based on an objective assessment of the legal effect of those documents. Whilst I acknowledge that the defendants may at all times have believed otherwise, the status of the agreement and the gates does not hinge on the subjective belief of the defendants. The status of the agreement and the plans is to be analysed objectively and hinges on the objective intent of the agreement. For this reason, I am not persuaded by the defendants’ arguments regarding whether or not there is a serious question to be tried. I remain satisfied that the plaintiffs’ case raises a serious question to be tried.
[8] On the issue of removal of the gates, which I understand has now happened, the defendants submit that they are “surprised at the nature of the mandatory order requiring the gates to open on to the right of way, or to be removed”.
[9] At the hearing before the delivery of the July judgment, I indicated that I would not make a mandatory order. I do not consider the interim order that I did make to be mandatory in ordering the defendants to remove the gates. As matters stand, I have concluded that the defendants have no right to have the subject gates, which are attached to a boundary fence between them and the plaintiffs, intrude on the plaintiffs’ property. The defendants have no easement that permits them to have their property intrude on to the plaintiffs’ land.
[10] I have found that there is nothing that legally entitles the defendants to have their property intrude on to the plaintiffs’ land. The plaintiffs requested a Court order to prevent such intrusions, which prior to the Court hearing were occurring continually.
[11] I consider that since the plaintiffs have established a serious case to be tried and that the balance of convenience favours them, they are entitled to an order which prevents the defendants from allowing their property to intrude on the plaintiffs’ land. There is nothing legally to stop the gates opening on to the servient land. However, I understand the defendants do not want this because it prevents them from using their carport. If the practical result of that prohibition is that the gates need to be removed because the defendants want to access their carport, that outcome results
from the defendants’ choice and not from any mandatory order of the Court for the gates to be removed. They could, for example, leave the gates in place, opening on to their property, and not use the carport until the substantive issue is finally determined.
[12] The removal of the gates has been brought about by the impracticality for the defendants of being able to have access to their carport while, at the same time, performing their obligations under the easement by ensuring that the plaintiffs’ ability to access their property over the easement is not impeded by closed gates.
Transfer of proceedings
[13] The defendants have raised the possibility of transferring the proceedings to the District Court, but the plaintiffs insist that the claim should stay in the High Court. I am not prepared to deal with this issue in the absence of a formal application.
[14] Further, I consider that since this Court has now been seized of the matter, a more efficient and cost-effective approach would be for the proceeding to go to a judicial settlement conference in this Court. If the parties are able to reach an agreed outcome at a settlement conference, that will bring the matter to an end.
[15] I direct, therefore, that the next step to be taken in this proceeding is for it to be allocated a judicial settlement conference.
Costs
[16] Regarding costs, the defendants submit that it would be unjust for costs to be ordered against the defendants and, indeed, they contend it would be appropriate for costs to be awarded against the plaintiffs. Their complaint is about the way in which the plaintiffs went about commencing the proceedings in this Court, rather than the District Court, and the plaintiffs’ failure to comply with timetabling directions.
[17] The plaintiffs, on the other hand, seek increased or indemnity costs, which come to the sum of $31,930.46.
[18] It is clear to me from this proceeding that the parties have had great difficulty in discussing the issue on any sensible basis. At the same time, I consider the issue is a relatively simple one. Had it not been for the difficulty the plaintiffs experienced in using their carport, it may well be that the question of whether the gates hinged inwards or outwards would not have led to these proceedings. The difficulty the defendants face is that they have constructed a carport which they can only use if the gates they have erected across the right of way that they share with the plaintiffs open on to the plaintiffs’ land. The plaintiffs do not want the gates opening on to their land, and the preliminary view I reached for the purposes of the application for interim relief was that there was no legal basis to support the gates opening on to the plaintiffs’ land.
[19] I consider the issues to be of a relatively simple compass. This is not an exceptional case where increased or indemnity costs should be granted. Accordingly, I see no reason why costs should not be in accordance with the usual scale costs in this Court. The plaintiffs have been successful. The usual approach is costs follow the event. I see no reason to depart from that here. Standard costs in this Court are category 2B. I see no reason why the standard should not be applied. The circumstances do not support the outcomes for which either party contends. The plaintiffs are entitled to costs at category 2B. The plaintiffs are also entitled to reasonable disbursements.
[20] As this is only an interlocutory application awaiting a final determination of the substantive matter, costs should be limited to steps taken in relation to the
interlocutory application:
10 Preparation for first case management conference
(including discussion about discovery)
11Filing memorandum for first or subsequent case management conference or mentions hearing
0.4
0.4
12 Appearance at mentions hearing or callover 0.2
13Appearance at first or subsequent case management conference
0.3
22 Filing interlocutory application 0.6
24 Preparation of written submissions 1.5
26Appearance at hearing of defended application for sole or principal counsel
0.5
29 Sealing orders or judgment 0.2
Daily recovery rate = $1,990
Total = 4.1 days at $1,990 = $8,159
4.1
[21] If the parties are unable to reach a position on what are reasonable disbursements these are to be fixed by the Registrar.
Duffy J
Solicitors: Woodroffe Law Partnership P O Box 6505 Wellesley Street Auckland 1141 (DX CP24140) for the Plaintiffs
Kensington Swan Private Bag 92101 Victoria Street West Auckland 1142
(DX CP22001) for the Respondents
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