Lyons v Breslin - [2012] NZHC 3106

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2009-404-7165 [2012] NZHC 3106

BETWEEN PETER JOHN LYONS AND SUSAN MARIE LYONS
Plaintiffs

ANDMARTIN PAUL BRESLIN AND SHAYLE CHAMBERS
First Defendants

ANDVICTOR RUTHERFORD Second Defendant

Hearing: On the papers

Appearances: K A Muir for the Plaintiffs
P J Dale for the First Defendants

Judgment: 21 November 2012

COSTS JUDGMENT OF PRIESTLEY J

Counsel:
K A Muir, Morgan Coakle, Auckland. Email: kmuir@morgancoakle.co.nz
P J Dale, Barrister, Auckland. Email: pauldale@45chancery.co.nz

LYONS V BRESLIN HC AK CIV-2009-404-7165 [21 November 2012]

[1] I released a reserved judgment to the parties on 7 March 2012. My decision was that the first defendants’ land at 31 Kitchener Road, Milford was not landlocked for the purposes of s 327 of the Property Law Act 2007.

[2] The hearing canvassed a number of issues which included various types of vehicular access which might be ordered in respect of 31 Kitchener Road; the value of any strips of land which might be taken from the plaintiffs’ neighbouring property at 33 Kitchener Road; site and traffic engineering issues; and whether, as a matter of law, the owners of 31 Kitchener Road and occupiers of that property were entitled to park on the shared driveway, a right-of-way, as of right.

[3] None of these issues, other than the last, needed to be decided by me since I was satisfied the first defendants were not entitled to the discretionary relief they sought under s 327. There is reasonable access to 31 Kitchener Road. The property was not landlocked.

[4] At the conclusion of my judgment, the first defendants being unsuccessful, I observed that the plaintiffs were entitled to costs. On that aspect I reserved my decision in the hope that costs would be agreed. Unfortunately there has been no agreement so a decision is required. Memoranda have been filed and it is common ground that I should decide costs on the papers.

[5] For a variety of systemic reasons, this judgment has been long delayed. It is pointless for me to list the systemic failures there have been. Suffice to say that, although these were not attributable to me, I am prepared to accept overall responsibility for them. I apologise to the parties for the delay and undoubted anxiety this might have caused.

[6] The dispute between the parties is clear. Mr Muir, for the plaintiffs, seeks increased costs by a 50% uplift on 2B scale costs.[1] He also seeks disbursements of
$74,292.14. Mr Dale, for the first defendants, accepts the plaintiffs are entitled to 2B costs but not more. In respect of the professional fees charged by one of the plaintiffs’ expert witnesses, Mr Baikie, Mr Dale submits the claimed figure of
$31,050 is unreasonable.

[1] Scale 2B costs would amount to $90,828. A 50% uplift, as claimed by Mr Muir, would reach

$136,242.

[7] So the issues quite simply are:

(a) Does r 14.6(3) of the High Court Rules apply? Does that rule entitle, in the circumstances of this case, the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lyons v Breslin

Details

AGLC: Lyons v Breslin [2012] NZHC 3106
Case: [2012] NZHC 3106
Decision Date: 21 November 2012

CaseChat Overview and Summary

In Lyons v Breslin, the plaintiffs sought a determination of whether the defendants' property was landlocked and, if so, an order for vehicular access. The defendants also sought a declaration that they had the right to park on a shared driveway. The court found that the defendants' property was not landlocked as there was reasonable vehicular access. The plaintiffs sought increased costs beyond the standard costs scale, arguing that the defendants' claim lacked merit and that they had made and rejected several settlement offers. The defendants argued that the plaintiffs should not be entitled to increased costs as their claim was not without merit and that the defendants were seeking an indulgence under the Property Law Act 2007. The court found that the defendants' claim was not without merit but that the plaintiffs were entitled to an uplift on the standard costs scale of just under one third, bringing the total costs to $121,000. The court also found that the plaintiffs were entitled to disbursements of $69,242.14, after making a modest reduction to the expert witness fee claimed.

The court considered the factors relevant to its discretion in awarding costs, including the merits of the defendants' claim, the settlement offers made, and the defendants' litigation stance. The court found that the defendants' claim was not without merit but that the plaintiffs were entitled to an uplift on the standard costs scale as the defendants were seeking an indulgence under the Property Law Act 2007 and had taken an inflexible litigation stance. The court also found that the plaintiffs' litigation stance was reasonable throughout and that the settlement offers made by the plaintiffs, while not ideal from the defendants' perspective, would have been a better outcome for the defendants than what was achieved. The court further found that the disbursements claimed were reasonable and that a modest reduction to the expert witness fee was appropriate given the expert's involvement in strategising and assessing competing expert evidence.

Orders