Purdie v Truckell - [2018] NZHC 149

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2014-409-000802 [2018] NZHC 149

BETWEEN
JUSTIN EUAN PURDIE and TRACEY

ANNE PURDIE Applicants

AND

NEIL ADRIAN TRUCKELL First Respondent

AND

SUSAN LUCY NIKOLAOU Second Respondent

AND

KAREN MAREE POWERS Third Respondent

AND

TERRANCE JOHN POWERS Fourth Respondent

AND

CHRISTCHURCH CITY COUNCIL Fifth Respondent

Hearing: On the papers

Counsel:

H C Matthews for the Applicants
D M Lester for the First, Second, Third & Fourth Respondents

Judgment:

15 February 2018

JUDGMENT OF NATION J AS TO COSTS

[1] With a judgment of 9 June 2016, the applicants were successful in proceedings seeking cancellation of a covenant over their land, although that success was through the Court accepting there should be a modification to that covenant. There had to be
a further hearing over the precise terms of that modification. At one time, it seemed

PURDIE v TRUCKELL [2018] NZHC 149 [15 February 2018]

agreement would be reached over those terms. Ultimately, a further hearing was required to deal with outstanding issues. The remaining issues were resolved with my judgment of 4 August 2017.

[2] After that, the Court was involved in further communications with counsel over the precise form of the orders giving effect to the judgments.

[3] In my judgment of 4 August 2017, I expressed the tentative view that, although the applicants were successful with their application on terms, in their proceedings they had sought to interfere with the respondents’ property rights as provided for in the covenant over the applicants’ land. I expressed the tentative view that costs should lie where they fell but reserved leave to the parties to file memoranda as to costs if they wished to pursue that issue further.

[4] Counsel for the applicants subsequently filed a memorandum seeking costs on a 2B basis.

[5] Mr Matthews acknowledged that previous authorities had suggested that costs would not be granted to a successful applicant wherein the proceedings they were seeking some indulgence against established property rights.1 He also referred to recent Court of Appeal authority, recognising that this approach has not been invariably taken since the new costs regime came into force on 2 January 2000. The award of costs remains discretionary.2

[6] The applicants seek costs on the basis they had been successful in the proceedings. They submitted the terms on which they succeeded were ultimately broadly consistent with a proposal they had made before filing the proceedings to resolve issues which had then arisen between the applicants and the second respondent, Ms Nikolaou. The issue then raised by Ms Nickolaou was that the applicants were allowing trees on their property to exceed the height of five metres, in breach of the 2005 covenant. The issue for the applicants was that they wanted to
build on their property in accordance with the 2010 covenant and a decision of the

1 Holdgate v Holdgate HC Auckland CP303/96, 24 September 1996.
2 Cunningham v Butterfield & Ors [2014] NZCA…

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 Purdie v Truckell

Details

AGLC: Purdie v Truckell [2018] NZHC 149
Case: [2018] NZHC 149
Decision Date: 15 February 2018

CaseChat Overview and Summary

The case of Purdie v Truckell concerns a dispute over a covenant over land owned by Justin and Tracey Purdie, with Neil Truckell, Susan Nikolaou, Karen Powers and Terrance Powers, and the Christchurch City Council as respondents. The Purdies sought to cancel a covenant over their land, which they claimed conflicted with a later covenant that allowed them to build on their property. The court initially accepted that the covenant should be modified, leading to a further hearing to determine the precise terms of that modification. The court's final judgment, delivered on 4 August 2017, resolved the remaining issues.

The central legal issue in this case was the allocation of costs between the parties. The applicants sought costs on the basis of their success in the proceedings, while the respondents argued that the proceedings were necessary due to difficulties caused by the applicants or their solicitors. The court had to decide whether the applicants or the respondents should bear the costs of the proceedings.

The court considered that the applicants' proceedings were necessary due to legal difficulties they faced, which were not the fault of the respondents. While the applicants were largely successful in their application, the court noted that they had sought to interfere with the respondents' property rights as provided for in the covenant. The court also found that the respondents were not consistently opposed to the applicants' application but primarily objected to the variation required regarding the height of trees on the property. The court concluded that the further hearing was necessary primarily because the respondents would not agree to a variation of the 2005 covenant that would allow trees over 10 metres on the property, effectively seeking to modify an essential aspect of the initial judgment.

In exercising its discretion, the court decided that costs should lie where they fell, meaning neither party was entitled to costs against the other. The court recognised that while the applicants were largely successful, the proceedings were necessary due to legal difficulties they faced, which were not the respondents' fault. The court also noted that the respondents were not consistently opposed to the applicants' application but primarily objected to the variation required regarding the height of trees on the property.

The final orders of the court were that neither the applicants nor the respondents were entitled to costs against the other party. The court's decision was based on the discretionary nature of the award of costs and the various factors considered in making its decision.

Orders