Wagg v Squally Cove Forestry Limited - [2014] NZHC 745

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CIV 2010-442-445 [2014] NZHC 745

BETWEEN
ASHLEY JOHN WAGG and others

Plaintiffs

AND

SQUALLY COVE FORESTRY LIMITED
and others
First Defendants

MARLBOROUGH DISTRICT COUNCIL

Second Defendant

On the papers

Counsel:

J M Fitchett for the Plaintiffs
L J Taylor QC and G M Downing for the First Defendants

Judgment:

9 April 2014

JUDGMENT OF MALLON J (Costs)

Introduction

[1] This judgment concerns the first defendants’ claim for costs in the High Court. The issue of costs has not been straightforward. That has meant that a number of memoranda from counsel for the plaintiffs and the first defendants have been filed on that topic. I have now had the opportunity to consider them. I note that the second defendant does not seek any order as to costs in its favour and made no submissions on the issue of costs between the plaintiffs and the first defendants

Background

[2] The plaintiffs own land in Wairangi Bay in the Marlborough Sounds. There were two possible ways to access their properties by car:

WAGG v SQUALLY COVE FORESTRY LIMITED [2014] NZHC 745 [9 April 2014]

(a) One way was over the first defendants’ private road (the red road) and then continuing over other, mainly private, land (the blue road).1 This was the traditional way the properties had been accessed.

(b) The other way was over the first defendants’ newly built road (the yellow road). For some of the plaintiffs that also required use of the blue road.

[3] The first defendants wanted the plaintiffs to use the yellow road and had offered terms on which that could occur. The plaintiffs regarded those terms as unreasonable and wished to continue to use the red and blue roads to access their properties. There had never been any suggestion that they could not continue to use the blue road (which passed through some of the plaintiffs’ properties). However the first defendants (via Mr Thornley) advised the plaintiffs that they wished to close access over the red road.

[4] The plaintiffs claimed their properties were landlocked. They applied for relief under s 327 of the Property Law Act 2007. In a judgment given on 19 October
2012 I granted the plaintiffs relief.2 That relief granted a right of way over the red

road. I indicated a preliminary view that the plaintiffs should have costs on a 2C

basis.

[5] The first defendants appealed my judgment. In a judgment given on

4 October 2013 the Court of Appeal allowed the appeal.3 It held that, although the land was landlocked, I did not have jurisdiction to grant relief over the red road. The Court’s view was this was because access over the red road would not unlock the plaintiffs’ properties. The Court’s concern was that the arrangements over the blue road were dependent on the goodwill of the landowners. It considered that without legal rights of way over the blue road the plaintiffs did not have “reasonable access
to the blue…

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: [2014] NZHC 745
Decision Date: 9 April 2014

CaseChat Overview and Summary

The case of Wagg v Squally Cove Forestry Limited involves the plaintiffs, owners of land in Wairangi Bay in the Marlborough Sounds, contesting access to their properties. The dispute centred on the use of a private road owned by the first defendants, Squally Cove Forestry Limited, which had built a new road (the yellow road) as an alternative to the traditional route (the red road). The plaintiffs sought relief under the Property Law Act 2007 to maintain access over the red road, which the first defendants sought to close. The High Court initially granted relief to the plaintiffs, but this decision was overturned by the Court of Appeal, which held that the relief was not justified due to the uncertainty over access over the blue road. The first defendants sought costs in the High Court based on this appellate decision.

The court considered whether costs should follow the event, as directed by the Court of Appeal, or whether a reduction should be made due to settlement offers. The court found that the first defendants were the successful party as the plaintiffs' application for relief was ultimately unsuccessful. However, the court found that a reduction in costs was not appropriate given the entrenched positions of both parties and the lack of clear unreasonableness on either side. The court also considered the appropriate category for the costs, ultimately deciding that a 2B basis was suitable, given the nature of the proceedings. Specific items of costs were disallowed based on the plaintiffs' success in certain applications and the misunderstanding of trial conditions. The court ordered that the first defendants were entitled to costs on a 2B basis, adjusted for the disallowed items.

The final orders of the court directed that the first defendants were to receive costs on a 2B basis, adjusted according to the court's decisions on the disallowed items. This included disallowing costs for opposing the plaintiffs' applications to join further plaintiffs and to issue a subpoena, as well as disallowing certain trial preparation costs. The court's judgment clarified the principles for determining costs in complex litigation involving multiple parties and multiple stages of proceedings.

Orders