Pollard v Williams - [2019] NZHC 2285

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CIV-2019-416-1

[2019] NZHC 2285

UNDER THE Property Law Act 2007

IN THE MATTER OF

an application to vary a land covenant

BETWEEN

KIERAN PATRICK POLLARD

Appellant

AND

GRAEME DENYS WILLIAMS AND DERRY STOVELL

Respondents

Hearing: On the papers

Appearances:

D Jenkin for Appellant

N Witters for Respondents

Judgment:

12 September 2019

JUDGMENT OF COOKE J

(Costs)

[1] By judgment dated 16 August 2019 I dismissed the appellant’s appeal from a decision of the District Court granting a variation to restrictive covenants over the respondents’ land pursuant to s 317 of the Property Law Act 2007.1 Whilst the appeal was substantively dismissed, I altered the wording of the variation to the restrictive covenant, and the appeal was allowed in part for that purpose.

[2] At the conclusion of the judgment I outlined my preliminary views on the matter of costs. I suggested that costs in the High Court should be awarded to the respondents on a 2B basis, but that there should be some reduction in the respondents’

1 Pollard v Williams [2019] NZHC 2029.

POLLARD v WILLIAMS [2019] NZHC 2285 [12 September 2019]

costs award given the alteration to the wording of the variation to the restrictive covenant, such that the respondent should only receive 80 per cent of a costs award. I also indicated that whilst it was for the District Court to determine, it may be that costs should lie where they fell in that Court. I noted that these preliminary views were subject to any offers made on a “without prejudice except as to costs basis”.2

[3] Following my judgment the District Court determined that costs should lie where they fall in that Court. There is agreement between the parties on the calculation of scale costs in this Court on a 2B basis. But by memorandum dated 26 August 2019 counsel for the respondents has indicated that, while the respondents agree with the Court’s preliminary views in relation to costs in the High Court, they suggest the orders in the District Court should take into account correspondence exchanged on a “without prejudice except as to costs” basis. By memorandum dated 4 September 2019 the appellant submits that costs should lie where they fall on the appeal, or should be reduced to only 50 per cent of a normal costs award. In relation to the District Court, the appellant supports the view that costs should lie where they fall.

Assessment

[4] The starting point is that an unsuccessful party should be liable for costs to the successful party, and that success on a limited basis is still generally regarded as success.3 Whilst costs involves the exercise of judicial discretion, the discretion is to be exercised in accordance with the principles that underpin the relevant rules.4 In Lawrence v Glynbrook 2001 Ltd Brown J held:5
[8] … an assessment of which party was “successful” requires both a consideration of which party…

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 Pollard v Williams

Details

AGLC: Pollard v Williams [2019] NZHC 2285
Case: [2019] NZHC 2285
Decision Date: 12 September 2019

CaseChat Overview and Summary

The case of Pollard v Williams involved a dispute between Kieran Patrick Pollard and Graeme Denys Williams and Derry Stovell regarding a variation to restrictive covenants over the respondents' land. The appeal was heard in the High Court of New Zealand, Gisborne Registry, and the judgment was delivered by Cooke J on 12 September 2019. The primary issue the court needed to decide was the allocation of costs following the appellant's appeal against a District Court decision to grant a variation to the restrictive covenants under section 317 of the Property Law Act 2007.

Cooke J began by noting that although the appeal was dismissed, the Court had altered the wording of the variation to the restrictive covenant, allowing the appeal in part for that purpose. The judge then turned to the issue of costs, outlining preliminary views on the matter, suggesting that the respondents should receive 80 per cent of the costs in the High Court on a 2B basis, with some reduction due to the alteration to the wording of the variation. The judge also indicated that it might be appropriate for costs in the District Court to lie where they fell. Following the judgment, the District Court decided that costs should indeed lie where they fell in that Court. The parties agreed on the calculation of scale costs in the High Court, but disagreed on the consideration of "without prejudice except as to costs" correspondence in determining costs in the District Court.

In addressing the costs, Cooke J emphasised that an unsuccessful party should be liable for costs to the successful party, even if the success is on a limited basis. The judge applied principles from Lawrence v Glynbrook 2001 Ltd, which held that success should be assessed by considering the end result and not just the initiation of steps. The judge concluded that the respondents were substantially successful despite the limited alteration to the covenant. The judge deemed a 20 per cent reduction in the respondents' costs in the High Court appropriate and agreed with the District Court's decision to let costs lie where they fell in that Court. The judge's final orders specified that the respondents were entitled to 80 per cent of the costs in the High Court, calculated on a 2B basis.

Orders