Street v Fountaine

IN THE HIGH COURT OF NEW ZEALAND MASTERTON REGISTRY

CIV-2014-435-6 [2016] NZHC 2670

UNDER

section 313 of the Property Law Act 2007

IN THE MATTER

of an application for relief concerning principally the land comprised in computer freehold registers WN40A/853 and WN564/201

BETWEEN

CHRISTOPHER JOHN STREET, PHILIP JOHN ENGLAND, MICHAEL JOHN STREET AND JOAN ISABELLA STREET

Plaintiffs

AND

REX ALISTAIR FOUNTAINE First Defendant

ASHBY DOWNS LIMITED Second Defendant

ANZ BANK NEW ZEALAND LIMITED Third Defendant

MARGARET ELIZABETH FOUNTAINE Fourth Defendant

On the papers
Counsel:	R K Macdonald for Plaintiffs T G Stapleton QC for Defendants
Judgment:	8 November 2016

JUDGMENT OF CLIFFORD J (COSTS)

STREET v FOUNTAINE [2016] NZHC 2670 [8 November 2016]

Introduction

[1]      In my decision of 3 October 2016 I dismissed the plaintiffs’ application for a declaration that their rights under a local water scheme constituted an equitable easement over land belonging to the first, fourth and second defendants, and accordingly declined their application for the registration of that easement over that land.1      I also  declined  the alternative,  and  generally unspecified, relief that  the plaintiffs sought.

[2]      In delivering judgment I observed that I saw no reason why costs should not follow the event.  Anticipating a lack of agreement, I invited submissions.   I have now received those submissions.

Submissions

[3]      The defendants apply for scale costs calculated on a Category 3 basis in accordance with various Band A, B or C time allocations they consider appropriate. With disbursements in accordance with r 14.12 of the High Court Rules, those scale costs total $130,956.  The defendants further claim increased costs of approximately

35 per cent ($46,691) to “ensure that they recover two-thirds ($177,647) of their actual and reasonable costs ($266,470)”.  They claim those increased costs on the basis of various elements of r 14.6.

[4]      Notwithstanding  the  terms  of  my  judgment,  the  plaintiffs  argue  they succeeded in part or that the outcome represented something in the nature of a “draw”.   They base that argument on the following, brief, observation in my judgment.

[115]    In this judgment I did not have to consider the legal significance of an absolute or unreasonable refusal by the Fountaines to allow access over Waikaramu for the purposes of the Lower Scheme.  But on the fundamental proposition that the law, hopefully more often than not, reflects properly informed assessments of what is fair and reasonable, such an absolute and unreasonable refusal would, in my view, be of highly uncertain legality.

[5]      The  plaintiffs  therefore  argue  that  costs  should  lie  where  they  fall. Alternatively, there should be a 50 per cent reduction in costs otherwise payable.  In doing so, the plaintiffs point to the provisions of r 14.7(b), (e), (f) and (g).  Finally, the plaintiffs deny there is any basis for an order of increased costs.

Analysis

Who succeeded?

[6]      High Court Rule 14.2 sets out the general principles which apply to the determination of costs.  The first such principle is that the party who fails pays costs to the party who succeeds.2  Who succeeded…