Taylor v Body Corporate 143180

[2014] NZHC 2598

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-004066 [2014] NZHC 2598

IN THE MATTER

of a statutory easement

UNDER

Section 313 of the Property Law Act 2007 and Section 73 of the Unit titles Act 2010

BETWEEN

STEPHEN TAYLOR and CR TRUSTEES LIMITED as trustees of the INTERCHANGE TRUST

Applicants

AND

BODY CORPORATE 143180
First Respondent

ANDREW ALLEN BRUCE DREAVER Second Respondent

OLIVIA MARIA MANSFIELD Third Respondent

MICHAEL ANTHONY WARD Fourth Respondent

GRAHAM ROBERT FISKEN and

MARIE THERESE FISKEN Fifth Respondents

JENNIFER ANNE HEARD, JOHN FRANCIS HEARD and LYNTON NICHOLAS BATES

Sixth Respondents

Hearing:	(On the papers)
Judgment:	22 October 2014

COSTS JUDGMENT OF VENNING J

This judgment was delivered by me on 22 October 2014 at 4.30 pm, pursuant to Rule 11.5 of the High

Court Rules.

Registrar/Deputy Registrar

Date……………

TAYLOR & Anor as trustees of the INTERCHANGE TRUST v BODY CORPORATE 143180 [2014] NZHC

2598 [22 October 2014]

Introduction

[1]      This  proceeding has  been  resolved  by agreement.   The only outstanding matter is the issue of costs. The applicant seeks costs, including disbursements being expert fees.   The fifth and sixth respondents oppose the application for costs and disbursements.

[2]      In the substantive application the applicants sought an order permitting them to carry out proposed excavation and drainage works on common property on a unit plan in respect of a property located at 59-67 St Georges Bay Road, Parnell.  The works were described in an affidavit of Mr Keogh, a civil engineer, engaged by the applicants.

[3]      The respondents to the proceedings were other unit owners.  Only the fifth and sixth respondents took steps in response to the application.   They filed oppositions and engaged their own independent engineering experts.

[4]      The  matter  was  scheduled  for  a  three  day  fixture  to  commence  on  15

September 2014.   On 11 September counsel advised the matter had been settled practically and the fixture was no longer required.  It was vacated with a direction that the parties exchange memoranda as to costs.

[5]      The applicants  seek  costs  on  a 2B basis,  together with  their expert  fees totalling $11,434.62.

[6]      The fifth and sixth respondents oppose the application for costs submitting the costs should lie where they fall.

[7]      I am satisfied that the appropriate order in this case is for costs to lie where they fall for the reasons that follow.

[8]      The proceedings have not been resolved at trial.  The merits of the parties’ respective positions have not been gone into.  In the absence of full consideration of the evidence (and cross-examination) it is not appropriate for the Court to draw the inferences that Mr St John submits should be drawn in his memorandum.

[9]      This  is  not  akin  to  a discontinuance where,  on  receipt  of a defence the plaintiff/applicant resolves not to proceed further and costs are appropriately ordered against the discontinuing party.

[10]     Nor is it a case where the applicant can be said to have succeeded against the positions adopted by the fifth and sixth respondents.   All had proper interests in pursuing and maintaining their positions.  What has been achieved is a resolution of an issue which the applicant and the fifth and sixth respondents  all had proper interests in.  All of them, the applicants but also the respondents, have incurred legal and expert fees.

[11]    It is important that where cases are resolved this Court not be led into speculating about what would have happened had there been a full hearing:  Ford v First National Real Estate Network Ltd.1   To do so would generally be inappropriate. While the Court may do so in exceptional cases, this is not such an exceptional case.

[12]     In all the circumstances and having regard to the matters raised in counsels’

memoranda there will be an order that costs in the proceedings are to lie where they fall.

Venning J

Solicitors:           Corban Revell, Auckland Wynyard Wood, Auckland Cliff Lyon, Auckland

Copy to:            E St John, Auckland

J Anderson, Auckland

1      Ford v First National Real Estate Network Ltd (2006) 18 PRNZ 432.