Village Residential Ltd v Cornes - [2020] NZHC 2230

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2020-441-000023

[2020] NZHC 2230

BETWEEN
VILLAGE RESIDENTIAL LTD

Applicant

AND

DAVID IAN CORNES

First Respondent

REI KAHUI JONES

Second Respondent

On the Papers

Counsel:

D Kerr for the Applicant

D O’Connor and J Heaphy for the Respondents

Judgment:

28 August 2020

JUDGMENT OF DOOGUE J

(Costs)

This judgment was delivered by Justice Doogue on 28 August 2020 at 2.30 pm
pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

Solicitors:
S J Scannell & Co, Hastings
Heaphy & Co, Hastings

VILLAGE RESIDENTIAL LTD v CORNES & ANOR [2020] NZHC 2230 [28 August 2020]

Introduction

[1]On 14 August 2020 I gave judgment for the applicant as follows:1

(a)Pursuant to the covenants implied in the right of way easement appurtenant to the applicant’s property, and to which the respondents’ property is subject, the applicant is entitled to carry out within the area the subject of the right of way easement, such works as are required to implement the plans, drawings and specifications approved by the Hastings District Council on 11 November 2019 pursuant the Council’s subdivision consent RMA20190177.

(b)The applicant and its employees, contractors and agents may enter onto the area the subject of the right of way easement, for the purposes of carrying out the said works, together with such vehicles and machinery reasonably required to carry out those works.

(c)The applicant solely shall bear the cost of the said works.

(d)The respondents and/or their agents are restrained from directly or indirectly obstructing, delaying or hindering the applicant and its employees, contractors and agents from the performance of the said works.

[2]The applicant now applies for an award of costs on a 2B basis, in the sum of

$12,308.50. Disbursements of $1,380.00 are also sought (comprising filing fees of
$740.00 and the scheduling fee of $640.00).

[3] The respondents oppose the making of an award of costs against them. They argue the Court is functus officio, but if the Court does consider it has jurisdiction then costs should lie where they fall.

Discussion

[4] The applicant’s memorandum on costs very unusually attaches a selection of emails between counsel (without any commentary or submissions thereon). These emails do not constitute evidence or submissions. In the circumstances, I consider they are inappropriately tendered to the Court and I do not intend to consider them.

[5] The respondents’ argument that the Court is functus officio is based on semantics rather than substance, and I reject it.

1 Village Residential Ltd v Cornes [2020] NZHC 2064 at [46].

[6] The starting point for the consideration of costs is r 14.2(1)(a) of the High Court Rules 2016:

14.2 Principles applying to determination of costs
(1)The following general principles apply to the determination of costs:
(a)the party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds:

…

[7]Rule 14.13 states:

14.13 Proceedings within jurisdiction of…

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.

Keep reading for free

Create a free CaseChat account to read Village Residential Ltd v Cornes and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] NZHC 2230
Decision Date: 28 August 2020

CaseChat Overview and Summary

Village Residential Ltd applied to the High Court of New Zealand for an award of costs against David Ian Cornes and Rei Kahui Jones, following a dispute over a right of way easement. The court had previously granted Village Residential Ltd permission to carry out works on the easement, and restrained Cornes and Jones from obstructing these works. Village Residential Ltd sought costs of $12,308.50 and disbursements of $1,380.00. Cornes and Jones opposed the application, arguing that the court was functus officio and that if the court did have jurisdiction, costs should lie where they fall.

The court found that Cornes and Jones' argument that the court was functus officio was based on semantics rather than substance, and rejected it. The court also found that the costs sought were undue because the matter could have been heard in the District Court, and a schedule of lower costs would be applicable. The court considered the principles applying to the determination of costs, and found that both parties were successful in their respective causes of action. However, the court refused to make an order for costs due to the applicant's failure in relation to a cause of action, failure to comply with Court directions, taking arguments that lacked merit, failure to accept a legal argument, and the remedial nature of s 313 of the Property Law Act 2007.

The court declined Village Residential Ltd's application for costs. The court found that Cornes and Jones should not be punished by a costs award, as this would be contrary to the remedial provisions under s 313 of the Property Law Act. The court found that costs should lie where they fall.

Orders