Horton v Te Puru Management Company Limited [2019] NZHC 738 (8 April 2019)

Last Updated: 17 June 2019

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2018-419-000086 [2019] NZHC 738

BETWEEN

PETER HORTON, PAULINE LOCKETT, ALLAN THOMSON, ALLISTER COOMBE, BRUCE and TINA LINDOP, DAVID TREBILCOCK, FRANK and JEAN JONES, GAEL McINNES, GARY and VERONICA LISTER, GRANT and MARILYN HOPKINS, IAN and LORRAINE CHANDLER, KEVIN and RONNY JORDAN, LORNA and BRYAN HAMBLETON, PETER and CHERYL MAHON, RAEWYN FERGUSSON, ROGER GORDON, TOM and CAROLYN ROBERTSON, TREVOR and DOT DAVIES, TREVOR and SHIRLEY BROWN, JUNE BATTEN and TONY LEADER, TIM PLUIJMER and BEN THEUNISSEN, MELISA TUPUHI and THOMAS TAOHO, CAROL and CHRIS STONE, DEREK and MARJORIE SAYLE Applicants

AND

TE PURU MANAGEMENT COMPANY LIMITED Respondent

Hearing:	On the papers
Appearances:	S W Hughes QC for Applicants I R Millard QC for Respondent
Judgment:	8 April 2019 at 3.30 pm

JUDGMENT OF COURTNEY J

[Costs]

This judgment was delivered by Justice Courtney on 8 April 2019 .at 3.30 pm pursuant to r 11.5 of the High Court Rules – Registrar / Deputy Registrar – Date........................

HORTON & Ors, v TE PURU MANAGEMENT COMPANY LIMITED [2019] NZHC 738 [8 April 2019]

[1] In my decision delivered on 5 March 2019 I made a number of declarations relating to the basis on which the applicant lot owners are levied for costs associated with running the Te Puru Holiday Park.¹ The parties each had a measure of success. The respondent seeks costs. The applicants say that costs should lie where they fall.

[2] The issues that I dealt with and the outcomes were, broadly, as follows:

(a) whether levies could be imposed for costs not specified in Schedule C of the Deed of Covenant. The respondent prevailed.

(b) whether the Deed of Covenant required the respondent to provide accounts. The applicants prevailed on the major aspect of this issue, with the respondent abandoning its position during the course of the hearing and agreeing that it was obliged to provide unredacted yearly accounts.

(c) whether the respondent could retain a margin when striking the levy.
The applicants prevailed

(d) whether the respondent could carry a loss or surplus forward and, in any event, whether it was open to the applicants to raise this issue in light of the previous arbitration between the parties. The respondent prevailed.

(e) whether the respondent was entitled to offer a rebate to those lot owners who had paid rates arrears. The respondent prevailed.

(f) whether lot owners were entitled to live year round at the holiday park with only one or two days break every 50 days. The respondent prevailed.

¹ Horton & Ors v Te Puru Management Company Limited [209] NZHC 339

[3] In my view this is a case in which both parties had a sufficient degree of success that the appropriate outcome is for costs to lie where they fall. I decline to make any order.










P Courtney J

Solicitors:

Auld Brewer Mazengarb McEwen, New Plymouth for Applicants Talbot Law Limited, Hamilton for Respondent