TAYLOR v SMALL [2018] NZHC 3270

TAYLOR v SMALL [2018] NZHC 3270

The first defendants were entitled to costs overall but a 20% reduction was appropriate under r 14.7(f)(ii) because the defendants pursued an unnecessary argument lacking merit (that the building could be an outbuilding and of a style in keeping absent any dwelling); expert witness fees were not recoverable as disbursement because they were not reasonably necessary to the decision. Costs of $15,610 and disbursements of $220 were awarded to the first defendants.

Citation
[2018] NZHC 3270
Parties
First Plaintiffs: William Peter Taylor and Susanmary Taylor; Second Plaintiffs: Scott Kerry Jackson and Sarahanne Jackson; Third Plaintiffs: Richard Donald Johnston and Rachel Elizabeth Johnston; Fourth Plaintiffs: Trevor Frank Savory and Sallieann Renwick; First Defendants: Geoffrey Clemment Small and Arias Small; Second Defendant: Bombay Investments Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
12 December 2018
Procedural Posture
Declaratory Judgment / Costs Application (post‑judgment)
Outcome
Order for costs in favour of the first defendants (Smalls) with a limited reduction; expert witness fees disallowed as disbursement.
Legal Topics
Restrictive Covenants Interpretation, Declaratory Relief, Injunction, Costs Assessment, Disbursements, Expert Evidence
Property Law Restrictive Covenants Equitable Remedies Civil Procedure Costs Restrictive Covenants Interpretation Declaratory Relief Injunction +3 more

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Parties

William Peter Taylor and Susanmary Taylor

First Plaintiffs

Scott Kerry Jackson and Sarahanne Jackson

Second Plaintiffs

Richard Donald Johnston and Rachel Elizabeth Johnston

Third Plaintiffs

Trevor Frank Savory and Sallieann Renwick

Fourth Plaintiffs

Geoffrey Clemment Small and Arias Small

First Defendants

Bombay Investments Limited

Second Defendant

Procedural Posture

Declaratory Judgment / Costs Application (post‑judgment)

Legal Issues

  1. 1 Whether restrictive covenants limited number of dwelling houses to three on the Smalls' land
  2. 2 Whether the equestrian facilities building breached the restrictive covenants
  3. 3 Whether injunctive relief should be granted removing the building

Ratio Decidendi

The first defendants were entitled to costs overall but a 20% reduction was appropriate under r 14.7(f)(ii) because the defendants pursued an unnecessary argument lacking merit (that the building could be an outbuilding and of a style in keeping absent any dwelling); expert witness fees were not recoverable as disbursement because they were not reasonably necessary to the decision. Costs of $15,610 and disbursements of $220 were awarded to the first defendants.

Court Disposition

Order for costs in favour of the first defendants (Smalls) with a limited reduction; expert witness fees disallowed as disbursement.

Orders

  • Costs awarded to the first defendants in the sum of 15610 NZD
  • Disbursements awarded in the sum of 220 NZD (filing fees only)