Newman v Dey - [2025] NZHC 1981

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-000475

[2025] NZHC 1981

UNDER Property Law Act 2007

IN THE MATTER OF

An application under ss 316 and 317 of the Property Law Act 2007 to modify covenant

BETWEEN

CAMPBELL JAMES NEWMAN, HAZEL ANNE NEWMAN and EUGENE FRANCIS SPARROW

Applicants

AND

STEPHEN JOHN DEY and LIANE MARY DEY

Respondents

Hearing: On the papers

Counsel:

D J Chisholm KC and J D Ryan for Applicants A C N Fuiava for Respondents

Judgment:

17 July 2025

JUDGMENT OF ANDREW J

[Costs]

This judgment was delivered by me on 17 July 2025 at 3 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

NEWMAN v DEY [2025] NZHC 1981 [17 July 2025]

Introduction

[1] In my substantive judgment of 17 April 2025,1 I granted the Newmans’ application for modification of an easement. I also ordered that the Newmans were to pay the Deys the sum of $100,000 in compensation pursuant to s 317(2) of the Property Law Act 2007 (PLA).2

[2]This judgment contains my decision on costs.

Submissions

[3]Both parties contend they are entitled to costs.

[4]The Newmans say they are entitled to 2B costs plus disbursements totalling

$30,000. Their submissions largely hinge on the recent judgment of Grau J in Kingsbeer v Okey, in which her Honour, endorsing the leading authorities of Synlait Milk Ltd v New Zealand Industrial Park Ltd3 and North Holdings Development Ltd v WGB Investments Ltd,4 held:5
Although the question here is different, being only whether costs should be awarded against the unsuccessful objector, I have some similar concerns about “immunising” an objector in the circumstances of the present case when there has never been any real attempt by the respondents to engage with the applicants’ concerns since 2017, and where the defence was largely based on what I considered was an unsupportable contention that it was not the respondent’s fault the parties could not get the road repaired.

[5] Mr Chisholm KC submits the respondents’ conduct has been unreasonable from the outset, noting that the Newmans made “genuine efforts” to resolve the matter amicably prior to commencing these proceedings. He says the Deys “unreasonably disregarded” the purpose of the easement and it was this misapprehension of the easement’s legal nature and purpose that ultimately made a cost-effective and practical resolution “impossible” and proceedings inevitable.

1      Newman v Dey [2025] NZHC 949.
2 At [79].
3      Synlait Milk Ltd v New Zealand Industrial Park Ltd [2020] NZSC 157, [2020] 1 NZLR 657.
4      North Holdings Development Ltd v WGB Investments Ltd [2014] NZHC 1175.
5      Kingsbeer v Okey [2024] NZHC 3582 at [21].

[6] The Newmans submit that the Deys’ “unreasonable conduct” was further compounded by:

(a)the respondents refusing to engage with an open pre-litigation settlement offer in January 2023;

(b)the respondents objecting based on their standing as the registered proprietors of 52 Wairoa Road and asserting detriment…

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 Newman v Dey

Details

AGLC: Newman v Dey [2025] NZHC 1981
Case: [2025] NZHC 1981
Decision Date: 17 July 2025

CaseChat Overview and Summary

The High Court of New Zealand, Auckland Registry, heard an application brought by Campbell James Newman and Hazel Anne Newman to modify an easement over Driveway A on 50 Wairoa Road, against Stephen John Dey and Liane Mary Dey. The Deys opposed the application on the basis that the easement was not intended to be modified, and sought costs against the Newmans for their unsuccessful opposition. The key legal issue was whether the Deys’ opposition to the modification of the easement was reasonable. The Court found that the Deys’ opposition was unreasonable due to their misinterpretation of standing and the flawed arguments they presented. The Court concluded that it was appropriate to depart from the usual approach of costs lying where they fall and award costs to the Newmans. The Newmans were awarded costs of $14,340 and disbursements of $30,000, subject to the submission of itemised invoices and Court approval.

The Court also addressed the Deys’ argument that the late amendment of the application to modify an easement rather than a covenant caused additional costs. The Court found that the amendment was necessary to address the issue of standing and did not warrant an award of costs to the Deys. Regarding the Calderbank offers, the Court held that the offers made by the Deys did not entitle them to a costs award in their favour. The Court ordered that the Deys pay the Newmans' costs and disbursements in the sum of $28,207.50, subject to the submission of invoices and Court approval for the disbursements. The Court also clarified that the costs associated with executing the orders made in the substantive judgment would be borne by the applicants.

Orders