TURNER v GOLDSBURY [2023] NZHC 682

TURNER v GOLDSBURY [2023] NZHC 682

Second counsel was not justified because the trial was not complex and the factual and expert evidence was within the normal range; investigation by the defendants' surveyor into restrictive covenants was reasonable and prudent, but a 50% reduction of the surveyor fee was appropriate because the surveyor was not called and those issues were not ultimately before the Court; accordingly costs of $23,900 and disbursements of $20,723.77 are awarded to the defendants.

Citation
[2023] NZHC 682
Parties
First Plaintiff: Warren Austin Turner; First Plaintiff: Linda Christine Turner; First Plaintiff: Geoffrey Malcolm Bilkey; Second Plaintiff: Suzanne Lesley Wardlaw; Second Plaintiff: Deryck Andrew Wardlaw; Second Plaintiff: Christopher James Faber Waters; Second Plaintiff: Melissa Lea Wardlaw; First Defendant: Kelvin Glen Goldsbury; First Defendant: Christine Joy Nightingale; First Defendant: Onehunga Trustee Company Limited; Second Defendant: CCCK Investments Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
30 March 2023
Procedural Posture
Application for Partition Order Under the Property Law Act 2007 / Costs Determination Following Dismissal of Partition Application and Judgment Dated 13 February 2023
Outcome
Award of costs to defendants; claim for second counsel disallowed; 50% reduction of expert surveyor fee accepted; disbursements awarded.
Legal Topics
Partition Order, Costs Allocation, Second Counsel, Expert Witness Fees, Restrictive Covenants, Property Law Act 2007 Ss 339–343
Property Law Civil Procedure Costs Law Evidence Law Partition Order Costs Allocation Second Counsel Expert Witness Fees +2 more

Case Brief

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Parties

Warren Austin Turner

First Plaintiff

Linda Christine Turner

First Plaintiff

Geoffrey Malcolm Bilkey

First Plaintiff

Suzanne Lesley Wardlaw

Second Plaintiff

Deryck Andrew Wardlaw

Second Plaintiff

Christopher James Faber Waters

Second Plaintiff

Melissa Lea Wardlaw

Second Plaintiff

Kelvin Glen Goldsbury

First Defendant

Christine Joy Nightingale

First Defendant

Onehunga Trustee Company Limited

First Defendant

CCCK Investments Limited

Second Defendant

Procedural Posture

Application for Partition Order Under the Property Law Act 2007 / Costs Determination Following Dismissal of Partition Application and Judgment Dated 13 February 2023

Legal Issues

  1. 1 Whether claim for second counsel was justified
  2. 2 Whether expert surveyor fees were reasonably necessary and the extent of any reduction
  3. 3 Proper quantum of costs and disbursements to award

Ratio Decidendi

Second counsel was not justified because the trial was not complex and the factual and expert evidence was within the normal range; investigation by the defendants' surveyor into restrictive covenants was reasonable and prudent, but a 50% reduction of the surveyor fee was appropriate because the surveyor was not called and those issues were not ultimately before the Court; accordingly costs of $23,900 and disbursements of $20,723.77 are awarded to the defendants.

Court Disposition

Award of costs to defendants; claim for second counsel disallowed; 50% reduction of expert surveyor fee accepted; disbursements awarded.

Orders

  • Costs awarded to the defendants against the plaintiffs in the sum of $23,900
  • Disbursements awarded to the defendants in the sum of $20,723.77