SKURR AS TRUSTEES OF E M AND J A SKURR FAMILY TRUST V CANTERBURY REGIONAL COUNCIL HC CHCH CIV 2008-409-000465 [2009] NZHC 462 (30 April 2009)

IN THE HIGH COURT OF NEW ZEALAND
CHRISTCHURCH REGISTRY
                                                                    CIV 2008-409-000465



               BETWEEN                      EDWARD MURRAY SKURR, JANICE
                                            ANNE SKURR
AND JOHN EDWIN
                                            MURRAY SKURR AS TRUSTEES OF
                                         
  E M AND J A SKURR FAMILY TRUST
                                            Plaintiffs

               AND                     
    CANTERBURY REGIONAL COUNCIL
                                            Defendant


Hearing:       (On Papers)

Counsel:    
  D Lester for Plaintiffs
               P F Whiteside for Defendant

Judgment:      30 April 2009


                      COSTS
JUDGMENT OF FOGARTY J



[1]    The last paragraph of the judgment of 15 December last reads:

       [48]     Both parties have
been partially successful. I reserve leave to either
       party to apply for costs.

[2]    Both parties now seek costs. The defendant
seeks costs on the basis that the
plaintiffs failed to obtain the relief they sought in the statement of claim. The
plaintiffs seek
costs on the basis that by obtaining a declaration that the riverbed was
not vested in the defendant the plaintiffs have in substance
succeeded.


[3]    I regard myself as bound by the first sentence of paragraph [48]. That is
sufficient to reject the plaintiffs'
argument of substantial success. However, I agree
with Mr Lester's argument that whether or not the riverbed had been vested in
Council
was at the core of the dispute between the parties, that is why I made the

SKURR AS TRUSTEES OF E M AND J A SKURR FAMILY TRUST V
CANTERBURY REGIONAL
COUNCIL HC CHCH CIV 2008-409-000465 30 April 2009

declaration. There is, however, force in Mr Whiteside's argument
that the Council
were put to unnecessary expense to defend an application for mandamus.


[4]     Balancing all these factors I dismiss
both applications for costs. Costs lie as
they fall.




Solicitors:
Helmore Bowron & Scott, Rangiora, for Plaintiffs
Wynn Williams
& Co, Christchurch, for Defendant