IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE	
CIV-2019-416-1
[2019] NZHC 2285	

UNDER THE	Property Law Act 2007	
IN THE MATTER OF	an application to vary a land covenant	
BETWEEN	KIERAN PATRICK POLLARD
Appellant	
AND	GRAEME DENYS WILLIAMS AND DERRY STOVELL
Respondents	

Hearing:	On the papers	
Appearances:	D Jenkin for Appellant
N Witters for Respondents	
Judgment:	12 September 2019	

JUDGMENT OF COOKE J
(Costs)

[1]	By judgment dated 16 August 2019 I dismissed the appellant’s appeal from a decision of the District Court granting a variation to restrictive covenants over the respondents’ land pursuant to s 317 of the Property Law Act 2007.1 Whilst the appeal was substantively dismissed, I altered the wording of the variation to the restrictive covenant, and the appeal was allowed in part for that purpose.

[2]	At the conclusion of the judgment I outlined my preliminary views on the matter of costs. I suggested that costs in the High Court should be awarded to the respondents on a 2B basis, but that there should be some reduction in the respondents’

1	Pollard v Williams [2019] NZHC 2029.

POLLARD v WILLIAMS [2019] NZHC 2285 [12 September 2019]

costs award given the alteration to the wording of the variation to the restrictive covenant, such that the respondent should only receive 80 per cent of a costs award. I also indicated that whilst it was for the District Court to determine, it may be that costs should lie where they fell in that Court. I noted that these preliminary views were subject to any offers made on a “without prejudice except as to costs basis”.2

[3]	Following my judgment the District Court determined that costs should lie where they fall in that Court. There is agreement between the parties on the calculation of scale costs in this Court on a 2B basis. But by memorandum dated 26 August 2019 counsel for the respondents has indicated that, while the respondents agree with the Court’s preliminary views in relation to costs in the High Court, they suggest the orders in the District Court should take into account correspondence exchanged on a “without prejudice except as to costs” basis. By memorandum dated 4 September 2019 the appellant submits that costs should lie where they fall on the appeal, or should be reduced to only 50 per cent of a normal costs award. In relation to the District Court, the appellant supports the view that costs should lie where they fall.

Assessment

[4]	The starting point is that an unsuccessful party should be liable for costs to the successful party, and that success on a limited basis is still generally regarded as success.3 Whilst costs involves the exercise of judicial discretion, the discretion is to be exercised in accordance with the principles that underpin the relevant rules.4 In Lawrence v Glynbrook 2001 Ltd Brown J held:5
[8] … an assessment of which party was “successful” requires both a consideration of which party won the principal contest of law and fact and a realistic appraisal of the end result, rather than focusing on who initiated what step and the extent to which that step succeeded or failed.

[5]	In applying those principles it is sometimes necessary to make a realistic overall appraisal of the end result.6

2	At [49]–[54].
3	High Court Rules 2016, r 14.2(1)(a); and Weaver v Auckland Council [2017] NZCA 330, (2017) 24 PRNZ 379 at [26].
4	Cunningham v Butterfield [2014] NZCA 213, (2014) 22 PRNZ 521 at [60].
5	Lawrence v Glynbrook 2001 Ltd [2015] NZHC 1005 (footnotes omitted).
6	Okey v Kingsbeer [2019] NZCA 419 at [14].

[6]	Applying those principles to the present case, I first conclude that the respondents were the successful party notwithstanding that, technically, the appeal was allowed. The appeal was allowed only for the Court to make an alteration to the terms of the variation to the covenant. Substantively the respondents were successful. The alteration to the wording to the variation to the covenant was not a matter raised by the appellant on his appeal. But some of the arguments advanced by him on appeal indicated that there was a difficulty with the precise form of the variation the District Court had allowed. On the grounds that the appellant pursued on appeal, he was unsuccessful. In those circumstances I have little hesitation in concluding that the respondents were substantially successful.

[7]	Given that the reasons for altering the wording of the varied covenant were associated with some of the arguments advanced by the appellant on the appeal, however, it seems to me to be appropriate to make some reduction in the costs award that the respondents would otherwise be entitled to. I cannot accept the appellants point that costs on the appeal should lie there they fall, or that there should be a reduction of 50 per cent in the costs award. A reduction of 20 per cent seems to me to be appropriate in the circumstances of this case.

[8]	As to costs in the District Court, it would appear that the District Court Judge has now made a decision. In doing so he has perhaps taken my preliminary views as being more directive than I had intended, and he may not have considered the correspondence exchanged on a “without prejudice except as to costs” basis. But having considered that correspondence it seems to me that the preliminary views I expressed in my judgment are appropriate and do not change as a consequence of that correspondence. Whilst the respondents made an offer that would have involved paying the appellant’s legal costs up to a certain point, that was only so if the appellant consented to the application. The appellant was not obliged to consent and he was entitled to be heard when that application was made to the District Court. The correspondence exchanged on a “without prejudice except as to costs” basis does not change the essential character of the respondents’ application to that Court, which remained an application seeking an indulgence.

[9]	The respondents are accordingly entitled to 80 per cent of costs in the High Court calculated on a 2B basis, to be fixed by the Registrar if not agreed. I indicate my agreement with the decision of the District Court that costs in that Court should lie where they fall.

Cooke J

Solicitors:
Woodward Chrisp, Gisborne for Appellant
Grey Street Legal Ltd, Gisborne for Respondent