Taylor v Small

[2018] NZHC 3270

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-864

[2018] NZHC 3270

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

SCOTT KERRY JACKSON AND SARAH ANNE JACKSON

Second Plaintiffs

RICHARD DONALD JOHNSTON AND RACHEL ELIZABETH JOHNSTON

Third Plaintiffs

TREVOR FRANK SAVORY AND SALLIE ANN RENWICK

Fourth Plaintiffs

AND

GEOFFREY CLEMMENT SMALL AND ARIA SMALL

First Defendants

…./cont

Hearing:	On the papers
Counsel:	R Brabant and S Darroch for the Plaintiffs A Simkiss for the First Defendants
Judgment:	12 December 2018

JUDGMENT OF GORDON J

[As to costs]

This judgment was delivered by me on 12 December 2018 at 3.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar  Date:

TAYLOR v SMALL [2018] NZHC 3270 [12 December 2018]

BOMBAY INVESTMENTS LIMITED

Second Defendant

Introduction

[1]                 This is an application by the first defendants, the Smalls, for costs and disbursements following my judgment of 29 October 2018,1 which was largely in their favour.

[2]                 The application is opposed by the first to fourth plaintiffs (the plaintiffs) who say that there should be a reduction in the costs as sought.

Substantive decision

[3]                 The plaintiffs brought an application under the Declaratory Judgments Act 1908 seeking declarations in relation to the interpretation of restrictive covenants, namely that:

(a)Only three dwelling houses may be built on the land that the Smalls purchased from the first plaintiffs, the Taylors, in 2013 (the Smalls’ land); and

(b)The equestrian facilities building (the building), which the Smalls have already constructed on that land, is in breach of the terms of the restrictive covenants.

[4]                 The plaintiffs further sought injunctions restraining the Smalls (or subsequent purchasers from them) from constructing any more than three dwelling houses on the Smalls’ land and ordering the Smalls to remove the building.

[5]                 I found in favour of the Smalls in relation to the number of dwelling houses and declined to make the declaration sought as referred to in [3](a) above. I therefore refused injunctive relief.

[6]                 Although I found in favour of the plaintiffs on the second issue and made the declaration sought as referred to in [3](b) above, I refused injunctive relief.

1      Taylor v Small [2018] NZHC 2785.

[7]                 My refusal was based on the fact that the building could not be said to be an “outbuilding” (as referred to in the restrictive covenants) in the absence of a house (which the Smalls are proposing to build on the property). I went on to state:

[171]     I have found, significantly, the building complies with the qualitative controls in the clause. Furthermore, I note that the Smalls have prepared a building site for a dwelling house. They have not yet constructed a dwelling house, as they have been awaiting the outcome of these legal proceedings.

[172]     The grant of an injunction is discretionary. In these circumstances, I do not…