PAIHIA PROPERTY HOLDINGS CORPORATE TRUSTEE LTD v BODY CORPORATE 190356 [2020] NZHC 3030

PAIHIA PROPERTY HOLDINGS CORPORATE TRUSTEE LTD v BODY CORPORATE 190356 [2020]NZHC 3030 [17 November 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2020-404-000593[2020] NZHC 3030IN THE MATTER of ss 316 and 317 of the Property Law Act2007IN THE MATTER of an application by PAIHIA PROPERTYHOLDINGS CORPORATE TRUSTEELIMITED for an order modifying orextinguishing right of way easementsBETWEEN PAIHIA PROPERTY HOLDINGSCORPORATE TRUSTEE LIMITEDApplicantAND BODY CORPORATE 190356First Interested PartyCHIN YUN HOLDINGS LIMITEDSecond Interested PartyHearing: On the papersJudgment: 17 November 2020JUDGMENT OF DOWNS J(Costs)This judgment was delivered by me on Tuesday, 17 November 2020 at 11 ampursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Anthony Harper, Auckland.Loo & Koo, Auckland.[1] Paihia Property Holdings Corporate Trustee Ltd, or Paihia Property, appliedunder s 316 of the Property Law Act 2007 for an order modifying an easement. Theinterested parties opposed. On 22 September 2020, I granted the application.1 I saidI considered Paihia Property entitled to 2B costs unless the parties disagreed. Theydo. Paihia Property argues it is entitled to indemnity costs or increased costs. Theinterested parties argue costs should lie where they fall because Paihia Property hasbeen granted an "indulgence".[2] The threshold for indemnity costs is deliberately high. Costs of this nature areunwarranted. The interested parties' conduct before the filing of proceedings isirrelevant. Rejection of a settlement offer is not grounds for indemnity costs underr 14.6(4) of the High Court Rules 2016. And, that the interested parties might havehoped to restrict development on neighbouring land does not, without more, mean theyacted egregiously in resisting modification of their property rights under the easement.[3] Increased costs are not warranted either. Rule 14.6(3)(a) is only satisfied if thenature of the proceeding or a step in it requires substantially more time than allocatedin band C. Paihia Property does not address this aspect. Paihia Property points to timeneeded to consider "evidential issues" after the interested parties filed new evidenceout of time. However, I do not consider this action contributed unnecessarily to thetime or expense of the proceeding or a step in it for the purposes of r 14.6(2)(b)(i).Finally, the interested parties' refusal to settle does not warrant increased costs underr 14.6(3)(b)(v) because the one settlement offer they declined (necessarily) requiredtheir capitulation.[4] The interested parties resist costs on the argument Paihia Property obtained anindulgence, which, as Anderson J said in Holdgate v Holdgate, "conventionally ismade at the expense of a costs award against the party obtaining the indulgence".2 Theprinciple has been affirmed by the Court of Appeal.31 Paihia Property Holdings Corporate Trustee Ltd v Body Corporate 190356 [2020] NZHC 2462.2 Holdgate v Holdgate HC Auckland CP303/96, 24 September 1996 at 3.3 Cunningham v Butterfield [2014] NZCA 213, (2014) 22 PRNZ 521 at [52].[5] This case is not governed by the principle. Jurisdiction to modify an easementis conferred on this Court by statute. Paihia Property exercised no more than itsstatutory right in seeking modification—and was successful.[6] The 2A costs items are not contentious. Claims for appearances at mentionsand callover are, for these were on the papers. I disallow for this reason.Paihia Property claims one day for the site visit. The actual visit took less than half aday, but everyone had to travel. Given this, I consider one day reasonable. So, I ordercosts of $19,995 ($17,925 and disbursements of $2,070) to Paihia Property.[7] This leaves one matter. I made a timetable to address an application by theinterested parties for compensation. Their evidence and submissions were due3 November 2020. The interested parties did not comply with the timetable. Instead,on 3 November they filed a memorandum of counsel recording they had lodged anappeal of my judgment; and seeking deferral of the issue of compensation until theappeal had been determined. The interested parties say anticipated valuation evidencein relation to compensation could prejudice its position in the Court of Appeal.[8] Unsurprisingly, Paihia Property opposes variation of the timetable. It notes thepossibility of compensation was raised late; and suggests any potential prejudice tothe appeal could be addressed by the valuation evidence being adduced on a withoutprejudice basis.[9] I share Paihia Property's frustration. The interested parties have not compliedwith the timetable and present its variation as fait accompli. However, I considervaluation now better addressed after the appeal. If the appeal succeeds, compensationfalls away. If the appeal fails, an application for compensation will need to respect thefactual conclusions upheld or untouched by the appeal. So, the application may alsofall away if events take this turn. Moreover, proceeding on a without prejudice basiscould become messy.[10] I quash the existing timetable for these reasons. The parties may revert to meonce the appeal is determined...Downs J