Thompson v Battersby HC Auckland CIV-2007-404-676

[2007] NZHC 2102

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2007-404-676

BETWEEN  MICHAEL LEITH THOMPSON Plaintiff

ANDTHOMAS ROGER TROUNSON BATTERSBY & ANOR Defendants

Memorandum:20 June 2007 and 20 July 2007 (Defendants)

26 June 2007 (Plaintiff)

Counsel:         R O Parmenter for Plaintiff

K A Muir for Defendants

Judgment:      6 September 2007 at 3:30 pm

RESERVED JUDGMENT OF COURTNEY J AS TO COSTS

This judgment was delivered by Justice Courtney on 6 September 2007 at 3:30 pm

pursuant to Rule 540(4) of the High Court Rules

Registrar / Deputy Registrar

Date……………………….

Solicitors:           Bruce Dell Law, P O Box 14224, Panmure

Fax: [phone]
Morgan Coakle, P O Box 114, Auckland
Fax: [phone] - K Muir

Counsel:            R O Parmenter, P O Box 1052, Shortland Street, Auckland

Fax: [phone]

THOMPSON V BATTERSBY & ANOR HC AK CIV-2007-404-676 6 September 2007

[1]      In my judgment 8 June 2007 I found in favour of the defendants and invited counsel to file memoranda in respect of costs which they have now done.

[2]      The defendants seek costs on a 2B basis together with disbursements totalling

$14,490.   The claims are set out in paragraphs 2(a) – (j) and 3 of counsel’s memorandum 20 June 2007.

[3]      The plaintiff accepts items 2(a), (h), (i) and (j) which total $11,600 and the disbursements which total $130.  Mr Parmenter, for the plaintiff, also points out that the defendants are entitled to a further 0.2 days ($320) in respect of the sealing of the judgment.

[4]      However, the plaintiff resists the claims in paragraph 2(b) – (g) which relate to the interlocutory application for injunction brought by the plaintiff in February

2007.  The grounds advanced by the plaintiff are that an interim ex parte injunction was granted on a “Pickwick” basis and subsequently continued after a defended hearing so that the plaintiff achieved success at both hearings.  Further, the trial dealt with a different proposal from that which was objected to in the interim injunction proceeding.  The main changes to the proposal were that the height and length of the wall were both reduced and a canopy removed.   Mr Parmenter submitted that the substantial  changes  to  the  original  proposal  following  the  interim  injunction amounted to a recognition by the defendants that the plaintiff’s objection to the original plan was justified.  As a result, the plaintiff not only resists paying costs to the defendants in respect of the interim injunction but seeks costs itself on the interim injunction.

[5]      In response, Mr Muir, for the defendants, submits that the changes to the original plan were made for the purposes of offering a compromise in an attempt to settle the matter and avoid the expense of trial.  However, not only was the revised proposal rejected but the plaintiff’s position at trial was that the proposed wall and deck were entirely prohibited by the restrictive covenant.

[6]      It seems to me that the plaintiff’s position in relation to the interim injunction would have merit had the plaintiff been prepared to recognise that building at a

certain level was permissible.  However the plaintiff’s position at trial was such that no proposal offered by the defendants would have been acceptable, making the contest between them “all or nothing”.

[7]      I do not accept that the plaintiff’s success in obtaining the interim injunction has any bearing on the ultimate costs outcome in this case.  One can readily see why the balance of convenience might favour the plaintiffs where reconstruction work is imminent but might ultimately prove to be unlawful.   However, the risk that an applicant in those circumstances takes is that the building work will ultimately prove to be lawful.   That has been the outcome in this case and the plaintiff cannot be entitled to costs simply because he was able to secure for himself an order preserving the status quo while the substantive issue was determined.

[8]      I therefore allow costs to the defendants in accordance with Mr Muir’s memorandum, together with the additional $320 payable in respect of the sealing of

the judgment.

P Courtney J