Okey v Kingsbeer - [2019] NZCA 419

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA32/2019
[2019] NZCA 419

BETWEEN	RONALD GORDON OKEY First Appellant MCKENZIE MCPHAIL CORPORATE TRUSTEES LIMITED Second Appellant
AND	PAULINE ANNE KINGSBEER AND BERNADETTE PLAW AS TRUSTEES OF THE PAK TRUST Respondents

Hearing:	2 September 2019
Court:	Collins, Wylie and Ellis JJ
Counsel:	J K Mahuta-Coyle for Appellants G P Mason for Respondents
Judgment:	9 September 2019 at 3.00 pm

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BThe respondents are entitled to one set of costs in this Court for a standard appeal on a band A basis plus any disbursements.

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REASONS OF THE COURT

(Given by Collins J)

Introduction

The appellants challenge a costs judgment of Cooke J delivered in the High Court on 14 December 2018.[1] The costs judgment was a further stage in what has been a protracted dispute that has seen a substantive judgment delivered in the High Court[2] and a successful appeal from that judgment.[3]
[1]Kingsbeer v Okey [2018] NZHC 3309 [costs judgment].
[2]Kingsbeer v Okey [2017] NZHC 57 [substantive judgment].
[3]Okey v Kingsbeer [2017] NZCA 625, (2017) 19 NZCPR 25.
The costs judgment necessitated Cooke J to determine costs in the High Court as a consequence of this Court’s decision allowing the appeal from the substantive judgment in the High Court. We note that Cooke J was not the Judge who heard the case in the first instance in the High Court.
The gravamen of the dispute is a roading easement over land owned by the respondents in their capacities as trustees of the PAK Trust. For many years, the appellants benefitted from that easement. A dispute arose about upgrading and maintenance of the road.
In 2013, the respondents commenced proceedings for orders extinguishing the easement and for the appellants to pay the cost of repair to bring the road back to the condition it was prior to the appellants’ use of it. Alternatively, if the easement was upheld, the respondents sought the costs of upgrading the road.
In its substantive judgment, the High Court held that the easement was invalid because of a failure to comply with s 348(1) of the Local Government Act 1974, which required local authorities to give permission before private roads are created.[4] It was held in the alternative that the use of the road had changed since the grant of the easement to such a degree that the equitable easement had been extinguished.[5] On appeal, this Court held the appellants’ equitable easement had not been extinguished and that it prevailed over s 348(1) of the Local Government Act but that, an upgrade of the road was required.[6] This Court directed the appellants meet 75 per cent of the costs of the upgrade, and the respondents 25 per cent. This Court did not expressly address in its judgment how costs in the High Court were to be determined.[7] The respondents applied to the High Court for determination of costs…

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 Okey v Kingsbeer

Details

AGLC: Okey v Kingsbeer [2019] NZCA 419
Case: [2019] NZCA 419
Decision Date: 9 September 2019 at 3.00 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellants Ronald Gordon Okey and McKenzie McPhail Corporate Trustees Limited challenged a costs judgment delivered by Cooke J in the High Court. The respondents, Pauline Anne Kingsbeer and Bernadette Plaw as trustees of the PAK Trust, sought orders extinguishing a roading easement over their land and the costs of repair to the road. The High Court initially held the easement was invalid, but the Court of Appeal held that the easement prevailed over the statutory requirement for local authority permission. The Court of Appeal ordered the appellants to pay 75% of the costs of upgrading the road. Cooke J subsequently determined the respondents were entitled to 50% of their costs in the High Court. The appellants appealed, arguing they substantially succeeded and were entitled to a full award of costs, or alternatively, costs should lie where they fall. The respondents contended that they also succeeded to some degree, and the orders made by Cooke J were within the range that was reasonably available.

The court considered the appeal based on the contention that the appellants substantially succeeded as a result of the Court of Appeal's decision and that they are therefore entitled to a full award of costs. Alternatively, if it is accepted that each party had some measure of success, costs should lie where they fall. The respondents argued that they also succeeded, albeit not to the degree they hoped. The court accepted that a costs decision involves the exercise of judicial discretion, and that discretion is to be exercised in accordance with the principles that underpin the relevant rules. The court examined the methodology adopted by Cooke J and was satisfied that his decision was one that was reasonably available to him. The court endorsed the approach Cooke J followed and the result he reached.

The appeal is dismissed. The respondents are entitled to one set of costs in this Court for a standard appeal on a band A basis plus any disbursements.

Orders