AMFL Limited v Savill - [2020] NZHC 3058

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-000143

[2020] NZHC 3058

BETWEEN
AMFL LIMITED

Applicant

AND

SIMON LYDALL SAVILL

Respondent

Hearing: On the papers

Appearances:

M J Hammer and C M O’Brien for Applicant D J Ballantyne for Respondent

Judgment:

19 November 2020

JUDGMENT OF DUNNINGHAM J RE: COSTS DECISION

This judgment was delivered by me on 19 November 2020 at 2.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: 19 November 2020

Introduction

[1] On 25 March 2020 the respondent (Mr Savill) sought an interim injunction preventing the applicant (AMFL) from exercising its mortgagee rights and restricting the mortgagee sale of the Mr Savill’s property at Kumutoto Bay, Marlborough (the property). I granted the injunction, on a without notice basis, on the same day.1 I did so on the basis that Mr Savill asserted that AMFL proposed proceeding with a

1 Savill v AMFL Ltd [2020] NZHC 655.

AMFL LIMITED v SIMON LYDALL SAVILL [2020] NZHC 3058 [19 November 2020]

mortgagee sale during COVID-19 level 4 lockdown restrictions, and considered it not possible to obtain the best price reasonably obtainable in the circumstances where prospective purchasers could neither view the property nor attend the auction.2

[2] After the lockdown restrictions were lifted, AMFL sought to rescind the interim injunction. At a hearing on 13 August 2020, I granted that application.3 In my subsequent reasons judgment, I found that Mr Savill had some arguable, but distinctively unpromising, claims.4 I also concluded that the balance of convenience clearly favoured AMFL for a number of reasons, so AMFL should be able to sell the property in its entirety, including with associated structures such as moorings and a jetty which were authorised by coastal permits. I reserved the issue of costs.

[3] AMFL has now made an application for costs in relation to the interim injunction proceedings.

Costs on the interim injunction

Applicant’s submissions

[4] AMFL’s position is that Mr Savill is not entitled to costs on the interim injunction. AMFL’s successful application to rescind the injunction demonstrates that it was not justified.

[5] AMFL seeks costs on an indemnity basis in the sum of $81,033.02 (inclusive of GST) and disbursements in the sum of $500.5 Furthermore, AMFL seeks indemnity costs on the current application, citing the lack of engagement by Mr Savill on the issue of costs.

[6] Counsel for AMFL refers to r 14.6(4)(e) of the High Court Rules 2016 which states the court may order a party to pay indemnity costs if “the party claiming costs is entitled to indemnity costs under a contract or deed”.

2 At [3].
3      AMFL Ltd v Savill [2020] NZHC 2053.
4      AMFL Ltd v Savill [2020] NZHC 2112.
5      Being the filing fee for the application to rescind the interim injunction.

[7] AMFL’s position is that under the terms of the Facility Agreement (the Agreement) it is entitled to recover all costs and expenses incurred…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AMFL Limited v Savill

Details

AGLC: AMFL Limited v Savill [2020] NZHC 3058
Case: [2020] NZHC 3058
Decision Date: 19 November 2020

CaseChat Overview and Summary

In the High Court of New Zealand, AMFL Limited, the applicant, brought an application against Simon Lydall Savill, the respondent, concerning the enforcement of mortgagee rights. The applicant sought an interim injunction against the mortgagee sale of the respondent's property in Marlborough, which was granted without notice. After the lockdown restrictions were lifted, the applicant sought to rescind the interim injunction, which was also granted. The court was required to determine the costs associated with the interim injunction proceedings.

The legal issues involved whether the indemnity costs claimed by the applicant were reasonable and if the respondent was entitled to costs on the successful application for the interim injunction. The court considered whether the indemnity clause in the Facility Agreement was engaged and whether the costs claimed were reasonable. The court also assessed whether the respondent was entitled to costs on the successful application for the interim injunction.

The court found that the indemnity clause in the Facility Agreement was clearly expressed and covered the need to oppose attempts to prevent the applicant from exercising its powers of mortgagee sale. The court considered the costs claimed by the applicant to be reasonable, as the tasks undertaken were those contemplated in the contract, the steps were reasonably necessary, and the charges were at a reasonable rate. The court awarded costs to the applicant in the sum of $81,533.02. The court also found that the respondent was entitled to costs on a 2B basis amounting to $3,583, which would be set-off against the amount awarded to the applicant.

The court further ordered that if the respondent was unable to meet the costs awarded, the applicant was entitled to recover them under the Agreement and the mortgage. The court also awarded $1,300 to the applicant on the current application for costs, which is just under 50 per cent of the applicant's actual costs.

Orders