Stokes v The Anglican Church Property Trustees

[2022] NZHC 2580

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-409-000337

[2022] NZHC 2580

IN THE MATTER

of the Land Transfer Act 2017

AND

IN THE MATTER

of an Application to Sustain Caveat 10719496.1

BETWEEN

COLIN PETER STOKES

Applicant

AND

THE ANGLICAN CHURCH PROPERTY TRUSTEES

Respondent

Hearing:	On the papers
Counsel:	Mr Stokes, Applicant in person J I Taylor for Respondent
Judgment:	6 October 2022

COSTS JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 6 October 2022 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

STOKES v THE ANGLICAN CHURCH PROPERTY TRUSTEES Costs [2022] NZHC 2580 [6 October 2022]

[1]                  Mr Stokes is self-represented. He brought this proceeding to sustain a caveat he lodged against land of the respondent. The respondent did not file papers in opposition to the application but did, by counsel, advise that the application would be opposed.

[2]                  The application was adjourned several times to allow it to be resolved by agreement. Ultimately, the parties  agreed  to  terms  of  an  easement  recognising Mr Stokes’ claimed interest in the respondent’s land, and an order was made sustaining the caveat pending the registration of the easement.

[3]                  The parties do not agree on costs. I directed the filing of memoranda anticipating I would deal with the matter on the papers. Memoranda have now been received, and no one has requested a hearing.

Some further background

[4]                  This dispute has a long history, and both parties have made reference to that in their memoranda. For reasons that follow, I do not need to set it out in detail. For present purposes, the following matters are relevant.

[5]                  Mr Stokes is one of six owners of a property at Little Akaloa, Banks Peninsula (Lot 4). His family has had a connection with the property for decades. It was leased by Mr Stokes’ grandparents from the respondent in 1960. They then purchased the property from the respondent in 1976. The property was subsequently bequeathed to Mr Stokes and other family members.

[6]                  Historically, Lot 4 has had rights of access over land owned by the respondent. Mr Stokes says that the respondent had incorrectly omitted the right of way from documents lodged at LINZ. He alerted the respondent to this in around 2016. Its response was unsatisfactory, necessitating the lodging of the caveat on 9 March 2017 to protect his interest.

[7]                  Mr Stokes believes that the respondent’s intention was to defeat his right of access to further its own commercial interests and interests of a third party to whom it has sold land that would be subject to his right of access.

[8]                  On 13 July 2021, the respondent applied to the Registrar-General of Land to lapse Mr Stokes’ caveat.

[9]                  On 19 July 2021, the respondent’s solicitors wrote to Mr Stokes and others, offering to grant an easement in favour of Lot 4 and requiring acceptance of the offer within two days. The  terms  of  the  proposed  easement  were  not  acceptable  to Mr Stokes because it did not provide for existing services within the right of way and excluded parts of the formed right of way.

[10]Mr Stokes filed his application to sustain the caveat on 30 July 2021.

[11]              The respondent filed a memorandum of counsel on 16 August 2021, noting that it would be opposing the application.

[12]An interim order sustaining the caveat was made on 27 August 2021.

[13]              There were then several adjournments of the application before the matter came before me on 9 June 2022. I was advised that the terms of an easement had been agreed and submitted for registration, but there was the potential for difficulty due to a third party’s prior dealing that might prevent registration. I made an order that pending further order of the Court or registration of the easement, Mr Stokes’ caveat shall not lapse. I also timetabled the filing of submissions as to costs of the proceeding.

Mr Stokes’ claims for costs and other sums

[14]Mr Stokes seeks all of the following:

(a)Lawyer’s fees and expenses of lodging the caveat. The amount originally claimed was  $2,200,  but  in  an  email  to  the  Court  of  29 September 2022, Mr Stokes claims $3,003, which is made up of

$2,533 in legal fees for services and advice rendered prior to 20 March

2017 in relation to the right of access and a further $450 being legal costs and disbursements for lodging his caveat.

(b)The filing fee on his application to sustain the caveat of $540.

(c)His costs for preparation of his application and appearances in an amount the Court considers just.

(d)Punitive and/or exemplary damages in an amount the Court deems just.

The respondent’s position on costs

[15]              The respondent considers it was the successful party. It says it was always prepared to provide an easement in exchange for withdrawal of the caveat, and its position was clear to Mr Stokes over several years and was formalised with its offer of 19 July 2021. The respondent argues Mr Stokes should pay it costs in the sum of

$4,302.

[16]              In the alternative, the respondent says if it was not the successful party the outcome was at least a draw and that the orders made did not prejudice it and were substantially the same as what it had offered Mr Stokes. If the Court considers no party has been successful, costs should lie where they fall.

[17]In respect of the amounts claimed by Mr Stokes, the respondent says:

(a)The fees and expenses of Clark Boyce were incurred in 2017 and do not relate to any steps taken in the proceeding and are not therefore recoverable as costs.

(b)The filing fee could be the subject of a costs award if Mr Stokes was deemed successful, which the respondent does not accept.

(c)Damages are not available under the costs regime.

(d)As a lay litigant, Mr Stokes is not entitled to costs.1

My analysis

[18]              I have a good deal of sympathy for Mr Stokes, who has been put to a considerable amount of time and trouble to secure the easement. However, his application faces insurmountable obstacles except in one respect. I will start with the issue of who was the successful party in this proceeding.

[19]              As a general rule, the successful party in proceedings before the Court is entitled to its costs.2 Mr Stokes was the successful party. He obtained an order that his caveat was sustained and was granted a registered easement by the respondent recognising the interest in the respondent’s land that he claimed.

[20]              The respondent was not successful, nor was the result of the proceeding a draw. I do not accept that the respondent was “always willing to provide an easement in exchange for a withdrawal of the caveat” as is submitted. It had notice of Mr Stokes’ claim in 2017 but did not grant an easement until 2022. Furthermore, it is significant that the respondent applied to lapse Mr Stokes’ caveat before making an offer to grant an easement and allowing just two days for acceptance. As there was no agreement as to the terms of the easement at that stage, Mr Stokes was forced to issue proceedings. It is also the case that the easement initially offered was not on terms acceptable to Mr Stokes, and the easement as granted was on materially different terms. It follows the respondent cannot be entitled to any costs.

[21]              However, unfortunately for Mr Stokes, I do not consider he is entitled to any costs either. Costs awards are intended to compensate a party for steps that are taken in a proceeding. The legal fees and other charges of Mr Stokes’ lawyers do not relate to steps taken in the proceeding. They relate to services and advice given in 2017 (over four years before this proceeding was commenced) in relation to his rights and steps taken to preserve those rights at a time when litigation was not reasonably contemplated.

1      McGuire v Secretary for Justice [2018] NZSC 116, [2019] 1 NZLR 335.

2      High Court Rules 2016, r 14.2(1)(a);  Shirley  v  Wairarapa  District  Health  Board [2006] NZSC 63; [2006] 3 NZLR 523 at [19] .

[22]              Mr Stokes is unable to claim costs for the work he had to do preparing and presenting his own case. It has been confirmed by the Supreme Court in McGuire v Secretary for Justice that a litigant in person cannot claim costs of a proceeding.3 The reason is that the costs regime is intended to compensate successful parties for the cost of legal representation. A  lay  litigant  will  not  generally  incur  such  costs,  and Mr Stokes did not do so here. I am, of course, bound by this decision and can see no basis upon which to depart from it.

[23]              The principle does not prevent Mr Stokes recovering disbursements reasonably incurred in pursuing the proceeding, which would of course include the filing fee paid on his notice of application of $540. He will be awarded this.

[24]              The remaining claim made by Mr Stokes for damages cannot be awarded. That is not a claim for costs but substantive relief which is not available in this proceeding. Mr Stokes would need to make such a claim in other proceedings.

Result

[25]The respondent is to pay Mr Stokes disbursements in the proceeding of $540.

O G Paulsen Associate Judge

Solicitors:
Wynn Williams, Christchurch

Copy to:
Mr C P Stokes

3 Above, n 1, at [55].