IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2009-404-8259

BETWEEN	ANTHONY PATRICK WALSHE Plaintiff

AND	ROSS DONALD MACRAE AND LYNETTE GWENETH JOY COLLINS Defendants

Hearing:	(on papers)

Appearances: G C Jenkin for the Plaintiff
Defendants in person

Judgment:	26 October 2010 at 3:30 p.m.

JUDGMENT (NO 2) OF WOODHOUSE J (Costs)

This judgment was delivered by me on 26 October 2010 at 3:30 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Counsel / Parties:
Mr G C Jenkin, Barrister, Auckland
Mr R D MacRae and Ms LGJ Collins
Instructing Solicitors:
Mr B K Dell, Bruce Dell Law, Solicitors, Panmure, Auckland

WALSHE V MACRAE AND COLLINS HC AK CIV 2009-404-8259 26 October 2010

[1]       This judgment is a review of the order in my judgment dated 25 June 2010 granting costs to the plaintiff on a 2B basis.  On the defendants’ application I granted leave to review the order with an opportunity given to both parties to file further submissions on the question.  Further detailed submissions from the defendants and from the plaintiff in response have since been filed.

[2]       The  original  costs  award  was  made  on  the  basis  that  the  plaintiff  had succeeded on his application for an interim injunction.  This was in accordance with the general principle that costs follow the event.  The application by the defendants to review the order sought an order that there be no costs awarded on the application for an interim injunction, or that costs be reserved until the substantive proceeding has been determined.  Somewhat surprisingly, the defendants now seek an award of costs in their favour notwithstanding the outcome of the hearing and the fact that they represented themselves.

[3]       The  defendants  advance  a  number  of  arguments  in  support  of  their application.  These may be summarised as follows:

a)        In the period leading up to the hearing the plaintiff failed to comply with various timetable orders and related rules.   The defendants say this was compounded by the fact that, at the commencement of the hearing,   the   plaintiff   presented   a   synopsis   of   the   plaintiff’s submissions   which,   the   defendants   say,   completely   recast   the argument   compared   with   the   argument   in   a   much   longer memorandum which had earlier been provided.   The result, the defendants submit, is that they were presented with difficulties in preparing for the hearing.

b)        The terms of the interim order sought by the plaintiff at the hearing were   markedly  different   from   the   order   earlier   sought.      The defendants submit that they “would not have objected to the terms of the interim injunction in its final form”.

c)        An award of over $14,000 in costs, being the assessment on a 2B basis, would be disproportionate having regard to the limited terms of the injunction granted, compared with the orders originally sought.

d)        The defendants have at all times been reasonable in their approach which is not the case, they say, with the plaintiff.

[4]       I do not consider that there was any breach of rules by the plaintiff which has any material bearing on the question of costs.  On the related point as to whether the plaintiff’s argument was recast in the memorandum served on the defendants at the commencement of the hearing I am also not persuaded that there is any aspect of this which bears on the question of costs.  On 27 April 2010 a 30 page submission was filed for the plaintiff.  The document served on the defendants on 13 May 2010, at the commencement of the hearing, was 10 pages long and described as a synopsis. The defendants have pointed to what they say are marked differences between the two documents in relation to the argument.

[5]       The substance of the plaintiff’s case was not altered.  The plaintiff presented the synopsis when it was recognised that the original submission was much longer than the rules permitted, without leave.   But the longer document, served well in advance of the hearing, provided the defendants with ample opportunity to marshal their own arguments.  In any event, the critical consideration is that there were clear prima facie grounds for the grant of an interim injunction, on a straightforward reading of the terms of the right of way.  Not much was required for the plaintiff to meet the initial threshold.  As my earlier judgment makes clear, the primary focus was on the range of arguments advanced by the defendants, none of which was sufficient to suggest that there was not a serious question to be tried or that there was a balance of convenience favouring the defendants.

[6]       The  second  point  concerns  the  terms  of  the  order  finally  sought  by the plaintiff, which is the order made, compared with the terms of orders earlier sought. The various orders sought were contained in drafts.   The first draft filed on 15
December 2009 sought, in effect, to prohibit use of the right of way for access to more than one dwelling.  An amended draft was filed on 17 February 2010.  This

provided, in summary, that if one of the lots was sold with the right of way appurtenant to it then (a) the right of way could not be used to access buildings on the unsold lot and (b) the unsold lot could not be sold with the right of way appurtenant to it.  In the plaintiff’s submissions dated 27 April 2010 it was stated, at paragraph 70 that an order was sought in terms of the amended draft, being the draft filed in February 2010.  However, at paragraph 89 there was reference to an affidavit of  Mr MacRae,  recording the  defendants’  then  current  intentions.    This  led,  in paragraph 90 of Mr Jenkin’s submissions for the plaintiff, to advise that the plaintiff would accept a modification of the order sought.  It is stated, quite clearly, that the interim order the plaintiff would seek would be in the terms as finally sought and as granted.

[7]       Given the facts just outlined I am satisfied that the defendants had clear notice, on or about 27 April 2010, as to the terms of the order that would be sought for the plaintiff at the hearing and that the defendants, in consequence, had ample opportunity to consider their position.  Notwithstanding this, the defendants opposed an order being made in the terms as finally sought.  They contended that there should be no injunction on any terms.   What they contended is discussed in detail in the principal judgment of 25 June 2010.

[8]       In relation to the defendants’ third argument, noted at [3]c) above, I am not persuaded that the modification of the order finally sought resulted in extra costs being incurred at earlier stages.  This is for the reasons essentially recorded in the preceding paragraph.  The case advanced by the plaintiff was necessary to secure any order, and all orders sought were opposed.

[9]       The final submission for the defendants does not provide grounds for an award  in  favour  of  the  defendants  nor  does  it  provide  grounds  for  refusing  or reducing an award of costs in favour of the plaintiff.   In the principal judgment I concluded that the various arguments advanced for the defendants did not provide grounds for declining the application.  It was unnecessary to assess the relative merit of the arguments for the defendants.   However, in view of the submission now advanced for the defendants, I do record that the arguments advanced for the defendants fell well short of indicating that there was not a serious question to be

tried on the plaintiff’s case.  So far as the plaintiff’s approach is concerned, I am not persuaded that there has been any unreasonable conduct on his part which would justify a reduction of the scale costs to which the plaintiff, in the normal course, would otherwise be entitled.

[10]     For these reasons the original award of costs to the plaintiff on a 2B basis is confirmed.

Peter Woodhouse J