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
[2024] NZHC 2805
•27 September 2024
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 PlaintiffsJAMES RICHARD RUITERMAN
Second Plaintiff
AND
GRAEME REYNOLD FORD, NGAIRE DAWN FORD AND STEPHEN REYNOLD FORD AS TRUSTEES OF THE
FOOTBRIDGE FAMILY TRUST
First DefendantsPAPA 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
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