Thornley v Ford - [2023] NZHC 1257

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-398

[2023] NZHC 1257

BETWEEN
PETER ERIC THORNLEY AND ROLIEN YOLANDA VAN HOUTEN
First Plaintiffs

JAMES RICHARD RUITERMAN
Second Plaintiff

AND

GRAEME REYNOLD FORD, NGAIRE DAWN FORD AND STEPHEN REYNOLD FORD AS TRUSTEES OF THE

FOOTBRIDGE FAMILY TRUST
First Defendants

PAPA PUTAIAO LIMITED

Second Defendant

Hearing: On the papers

Counsel:

A E Simkiss for Plaintiffs D G Hayes for Defendants

Judgment:

26 May 2023

COSTS JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 26 May 2023 at 11 am pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: ...................................

THORNLEY v FORD [2023] NZHC 1257 [26 May 2023]

Introduction

[1] In a judgment of 1 April 2022, I declined the plaintiffs’ claim for relief against the first defendants.1 This judgment determines costs in the proceeding.

[2] By way of background, at all material times the plaintiffs had a legal easement for the supply of water to their land over the first defendants (burdened) land. However, 40 or so years ago, when the pipes were laid, and well before the plaintiffs acquired their land, the then owners deviated from the easement plan when they erected their pumphouse and laid sections of the pipes.

[3] In or about 2017, the first defendants indicated to the plaintiffs that they wished to build on or in the vicinity of where they believed the pipes to be, and they wished the plaintiffs to re-lay the pipes in accordance with the plan. This led to differences between the parties, and culminated in the plaintiffs commencing proceedings in March 2019. The plaintiffs sought recognition of what they contended was an equitable easement; alternatively rectification of the legal easement; alternatively claimed that the first defendants were estopped in denying their right to continue to take supply through the pipes as laid.

[4] In late-January 2021, several months before the case was to be heard, the first defendants transferred their land to the second defendant, PPL, which is now in liquidation. PPL was owned and controlled by Mr Stephen Ford, the third-named first defendant and the son of Dr Graeme Ford and Mrs Ngaire Ford, the first and second-named first defendants. The transfer of the land to PPL was principally intended to thwart the plaintiffs, but also to extract Dr and Mrs Ford from the litigation. Mr Hayes appeared for both the first defendants and PPL, as their interests aligned.

[5] On learning of the transfer of the land to PPL, the plaintiffs amended their statement of claim to allege that PPL took the land subject to their claimed equitable easement. I would have upheld the plaintiffs on this point, had they succeeded against the first defendants.

1 Thornley v Ford [2022] NZHC 667.

[6] Lastly, this judgment on costs is much later than it should have been. I was under the impression, wrongly as it turns out, that I was to await…

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.

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Details

Case: [2023] NZHC 1257
Decision Date: 26 May 2023

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Thornley v Ford involved the plaintiffs seeking relief against the first defendants over a water supply easement. The plaintiffs claimed an equitable easement, rectification of the legal easement, or estoppel against the first defendants denying their right to use the pipes as laid. The first defendants, who were the owners of the burdened land, had deviated from the original easement plan when laying their pumphouse and pipes. The plaintiffs initiated proceedings in 2019 after the first defendants expressed their intention to build on the land where the pipes were believed to be located. The first defendants later transferred the land to the second defendant, a company in liquidation, in an attempt to thwart the plaintiffs' claim and remove themselves from the litigation. The plaintiffs amended their statement of claim to allege that the second defendant took the land subject to their claimed equitable easement.

The court was required to decide on the costs incurred by the parties during the litigation. The first defendants sought scale costs based on the principle that the unsuccessful party should pay the successful party's costs. The plaintiffs did not dispute the principle but challenged some of the specific costs claimed by the first defendants. The court disallowed certain costs related to the transfer of land to the second defendant and an application for injunctive relief. The first defendants also sought increased costs for steps taken after proposing a method of resolution to the plaintiffs, but the court declined to award increased costs as it did not consider the proposal an "offer of settlement." The plaintiffs sought a reduction in the first defendants' costs due to the transfer to the second defendant, which the court granted to the extent of 20 per cent.

The court ordered the plaintiffs to pay the first defendants' costs and disbursements according to the judgment. The court made no award in favour of or against the second defendant, as it was in liquidation. The plaintiffs and first defendants were not to seek any contribution from a former plaintiff who had discontinued the proceedings. The court did not make any order in favour of or against either party regarding the costs related to the injunction application, as it was unclear who was the successful party in that aspect of the case.

Orders