Turner v Goldsbury

[2023] NZHC 682

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-000337

[2023] NZHC 682

UNDER

ss 339–343 of the Property Law Act 2007

IN THE MATTER OF

an application for a partition order

BETWEEN

WARREN AUSTIN TURNER,

LINDA CHRISTINE TURNER and GEOFFREY MALCOLM BILKEY
First Plaintiffs

SUZANNE LESLEY WARDLAW, DERYCK ANDREW WARDLAW, CHRISTOPHER JAMES FABER WATERS and MELISSA LEA WARDLAW

Second Plaintiffs

AND

KELVIN GLEN GOLDSBURY, CHRISTINE JOY NIGHTINGALE and ONEHUNGA TRUSTEE COMPANY LIMITED

First Defendants

CCCK INVESTMENTS LIMITED

Second Defendant

Hearing:

[On the Papers]

Appearances:

S A Keall for Plaintiffs

S J Ryan and S A Kilgour for Defendants

Judgment:

30 March 2023

JUDGMENT OF EDWARDS J

[Costs]

This judgment was delivered by me on 30 March 2023 at 2.30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

TURNER v GOLDSBURY [2023] NZHC 682 [30 March 2023]

[1]    In my judgment dated 13 February 2023, I dismissed the plaintiffs’ application for an order for partition under s 339(1)(c) of the Property Law Act 2007.1

[2]The defendants seek costs of $26,290 plus disbursements in the sum of

$20,723.77. The plaintiffs dispute the claim for second counsel, and dispute that all costs incurred by an expert surveyor were reasonably necessary to defend the proceeding. All other issues of costs and disbursements are agreed.

[3]    I have read counsels’ memoranda and need only deal briefly with the two issues in dispute.

[4]    I am not persuaded that the claim for second counsel is justified in this case. The trial was not complex, and the volume of factual and expert evidence was within the normal range for a proceeding of this type. The claim for second counsel is declined.

[5]    The defendants’ claim for disbursements includes the sum of $15,594 being 50 per cent of the fee paid to an expert surveyor engaged by the defendants.  The 50   per cent reduction is offered in acknowledgement that the surveyor was not called to give evidence at trial, and aspects of the expert opinion (concerning conditions and restrictive covenants) were not considered at the hearing.

[6]    Counsel for the plaintiffs submits that the fee for work on a restrictive covenant area should be excluded altogether, with other line items in the invoices reduced by half for reasons of proportionality. On this basis, the plaintiffs say that no more than

$11,891 should be allowed for expert surveyor fees.

[7]    I consider the fees incurred for investigating the possibility of conditions and restrictive covenants was reasonable in the circumstances. Although the plaintiffs did not seek the imposition of conditions in this case, it was reasonable for the defendant to consider this as an alternative position if the main opposition to the application was unsuccessful. Furthermore, the Court has the power to impose conditions notwithstanding the position of the parties. It was prudent to consider this position in

1      Turner v Goldsbury [2023] NZHC 179.

advance. A 50 per cent reduction is appropriate to reflect the fact that this was not ultimately an issue at trial, and the expert surveyor was not called to give evidence. Disbursements shall be awarded in the sum claimed by the defendants.

[8]    Accordingly, I award costs to the defendants against the plaintiffs in the sum of $23,900, plus disbursements in the sum of $20,723.77. The costs of preparing and filing memoranda as to costs shall lie where they fall.

Edwards J

Counsel/Solicitors:

S A Keall, Auckland D A Cowan, Auckland S J Ryan, Auckland

Daniel Overton and Goulding, Auckland