Taylor v Small - [2020] NZHC 2947

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-864

[2020] NZHC 2947

UNDER the Declaratory Judgments Act 1908

IN THE MATTER

of an application for a Declaratory Judgment

BETWEEN

WILLIAM PETER TAYLOR AND SUSAN MARY TAYLOR

First Plaintiffs (Discontinued)

SCOTT KERRY JACKSON AND SARAH ANNE JACKSON

Second Plaintiffs

RICHARD DONALD JOHNSTON AND RACHEL ELIZABETH JOHNSTON

Third Plaintiffs (Discontinued)

TREVOR FRANK SAVORY AND SALLIE ANN RENWICK

Fourth Plaintiffs

AND

GEOFFREY CLEMMENT SMALL AND ARIA SMALL

First Defendants

BOMBAY INVESTMENTS LIMITED

Second Defendant

Hearing: On the papers

Appearances:

TJG Allan for the Second and Fourth Plaintiffs C B Wilkinson-Smith for First Defendants

Judgment:

11 November 2020

JUDGMENT OF GORDON J

[As to costs]

This judgment was delivered by me on 11 November 2020 at 3 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

TAYLOR v SMALL [2020] NZHC 2947 [11 November 2020]

Introduction

[1] This is an application by the second plaintiffs, Scott and Sarah Jackson, and the fourth plaintiffs, Trevor Savory and Sallie Renwick (together the plaintiffs), for costs. The application follows my judgment, given on 11 August 2020, in which I declared the equestrian facilities building constructed by the first defendants, Geoffrey and Aria Small (the Smalls), on their property in breach of certain restrictive covenants.1

[2] The Smalls submit any award of costs should be reduced on account of the plaintiffs’ partial success. They point, in particular, to the terms of the injunction sought by the plaintiffs which, they say, were materially different from the relief granted.

Background

[3] This proceeding was originally brought by four plaintiffs against the Smalls. All are owners of rural lifestyle blocks located south of Auckland between Ramarama and Bombay. The Smalls purchased land from the first plaintiffs, William and Susan Taylor. The title to that land was encumbered by certain restrictive covenants which controlled the type and extent of development on that land. The Smalls erected an equestrian facilities building.

[4] The first to fourth plaintiffs commenced proceedings in May 2018 alleging, among other things, that the equestrian facilities building was in breach of the restrictive covenants. They sought an injunction requiring removal of the building. I concluded that the building did not comply with the covenants. I made the declaration but refused to grant an injunction. I did not consider it equitable to require the removal of the equestrian facilities building in the circumstances as I had found them to be.

[5] All four plaintiffs appealed that decision and the Smalls cross-appealed. The second ground of appeal, dealing with the construction of the restrictive covenants, was the only successful one. The Court of Appeal held:2

1 Taylor v Small [2020] NZHC 2023.
2 Taylor v Small [2019] NZCA 152 at [59]-[60].

… that any dwelling house and outbuilding must:

(a)be usual and reasonable for the type of rural use of the land in the subdivision; and

(b)be of a nature, design or style in keeping with…

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 Taylor v Small

Details

AGLC: Taylor v Small [2020] NZHC 2947
Case: [2020] NZHC 2947
Decision Date: 11 November 2020

CaseChat Overview and Summary

In this case, the plaintiffs, Scott and Sarah Jackson, and Trevor Savory and Sallie Renwick, sought an order for costs against the defendants, Geoffrey and Aria Small. The proceeding originated as a dispute over the construction of an equestrian facilities building by the Smalls, which the plaintiffs alleged breached certain restrictive covenants. The High Court initially found that the building was in breach of the covenants but refused to grant an injunction for its removal. This decision was appealed and subsequently remitted back to the High Court for reconsideration in light of the Court of Appeal's findings on the interpretation of the restrictive covenants. The High Court ultimately concluded that the building did not comply with the covenants and ordered a process to ensure compliance, but did not grant the injunction sought by the plaintiffs.

The legal issues before the Court centered on whether the plaintiffs were entitled to full costs given their partial success and whether certain costs claimed were appropriate. The defendants argued that the plaintiffs' partial success warranted a reduction in costs, particularly as the injunction sought was not granted. They also contended that some of the steps taken during the proceeding were more appropriately categorized as band A costs, which would also justify a reduction.

The Court found that the plaintiffs were entitled to full costs, rejecting the argument that their partial success warranted a reduction. The Court held that the relief granted was still a success on the key issue of compliance with the covenants and that the difference in the form of the relief did not change the outcome. Additionally, the Court ruled that none of the steps taken were appropriately categorized as band A costs, and thus, the plaintiffs were entitled to 2B scale costs for all steps. The Court did, however, make an adjustment to the quantum of costs to reflect the actual time spent on one interlocutory application.

The Court awarded the plaintiffs costs in the sum of $51,743.50 and disbursements of $10,034.14, totaling $61,777.64 against the Smalls.

Orders