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 DefendantsJudgment:
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…
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- [2016] NZHC 2670
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