Peter Eric Thornley And Rolien Yolanda Van Houten s James Richard Ruiterman And Graeme Reynold Ford, Ngaire Dawn Ford And Stephen Reynold Ford As Trustees Of the Footbridge Family Trust s Papa Putaiao Limited (In

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-398

[2024] NZHC 2805

BETWEEN
PETER ERIC THORNLEY AND ROLIEN YOLANDA VAN HOUTEN
First Plaintiffs

JAMES RICHARD RUITERMAN

Second Plaintiff

AND

GRAEME REYNOLD FORD, NGAIRE DAWN FORD AND STEPHEN REYNOLD FORD AS TRUSTEES OF THE

FOOTBRIDGE FAMILY TRUST
First Defendants

PAPA PUTAIAO LIMITED (IN LIQUIDATION)

Second Defendant

Hearing: On the papers

Counsel:

A E Simkiss for Plaintiffs

Self-represented First Defendants

Judgment:

27 September 2024

COSTS JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 27 September 2024 at 2 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

THORNLEY v FORD [2024] NZHC 2805 [27 September 2024]

Introduction

[1] This decision is to (re)determine costs in the High Court, following the Court of Appeal’s decision in this matter of 9 May 2024.1

[2] I had previously ordered the plaintiffs to pay costs to the first defendants on a 2B basis, less a 20 percent deduction made pursuant to High Court Rules 2016, r 14.7(d), as the defendants had failed in relation to an issue which subsequently increased the costs of the plaintiffs.2 This reduction arose from the first defendants’ transfer of the land in issue to PPL, the second defendant (“transfer”). That transfer, which occurred late in the piece, would have been fraudulent if the equitable easement in dispute had continued to exist at the time of the transfer.

[3] The Court of Appeal set my costs order aside, in keeping with its decision on the merits, hence this reconsideration.

[4] The plaintiffs now seek $61,484 in costs calculated on a combination of a 2A and 2B basis. The plaintiffs also seek a 20 per cent increase in scale costs on the grounds the defendants pursued an unnecessary argument which lacked merit, that argument being based on the transfer referred to above.3 The plaintiffs also seek disbursements.

[5] I have not received any submissions from the second defendant which is in liquidation. However, the first defendants oppose any award of costs and submits they should lie where they fall on the basis that the appeal to the Court of Appeal was unnecessary. This is because the plaintiffs had settled the form of easement with the purchaser of the first defendant’s land. The first defendants also oppose any uplift on costs, should they be awarded. In addition, the first defendants wish to have time to pay any award, if an award is made.

1      Thornley v Ford [2024] NZCA 154.
2      Thornley v Ford [2023] NZHC 1257.
3      High Court Rules 2016, r 14.6(3)(b)(ii).

Discussion

[6]The plaintiffs are entitled to costs as the successful party.

[7] The first defendants’ submission that the appeal was unwarranted is irrelevant to the determination of costs in the High Court.

[8] The uplift sought is appropriate as regards costs the plaintiffs incurred after they learned of the transfer. It had no impact on costs before then.

[9] I am unable to make an order permitting the first defendants time to pay. That is a matter they will need to address with the plaintiffs, or with the Court if the plaintiffs take steps to enforce.

Result

[10] I make an award of costs and disbursements in the proceedings to the plaintiffs, with a 20 per cent uplift on all costs incurred after notification to the plaintiffs of the transfer. The quantum of both costs and disbursements is to be fixed by the Registrar, in consultation with the parties.

Peters J

Solicitors: MinterEllisonRuddWatts, Auckland

Copy for: First Defendants
Waterstone Insolvency, Auckland

CaseChat Overview and Summary

The High Court of New Zealand, Auckland Registry, considered a case concerning the determination of costs following an appeal by the plaintiffs, Peter Eric Thornley and Rolien Yolanda Van Houten, and the second plaintiff, James Richard Ruiterman, against the first defendants, Graeme Reynold Ford, Ngaire Dawn Ford, and Stephen Reynold Ford as Trustees of the Footbridge Family Trust, and the second defendant, Papa Putaiao Limited (in liquidation). The original proceedings involved disputes over an equitable easement over certain land, with the Court of Appeal reversing the High Court's earlier costs order. The plaintiffs now sought a reassessment of costs, including an increase in costs due to the defendants' pursuit of a particular argument.

The primary legal issues the court had to address were whether the plaintiffs, as the successful party, were entitled to costs and if so, the appropriate scale and amount, and whether there should be an uplift in costs due to the defendants' argument regarding the transfer of the disputed land. The court also needed to consider the defendants' argument that the appeal was unnecessary and their request for time to pay any awarded costs.

In its judgment, the court held that the plaintiffs were entitled to costs as the successful party. The court dismissed the defendants' contention that the appeal was unnecessary, as this did not impact the costs determination. The court found that an uplift in costs was appropriate for the period after the plaintiffs were notified of the transfer, but not for costs incurred prior to that notification. The court could not order the defendants time to pay the awarded costs, stating that this was a matter for the defendants and the plaintiffs to resolve among themselves or through enforcement actions.

The court ordered the plaintiffs to receive costs and disbursements from the defendants, with a 20 per cent uplift on costs incurred after notification of the transfer. The exact amount of costs and disbursements would be determined by the Registrar in consultation with the parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established