ASB Bank Limited (398445) v LJ Holdings (no 1) Limited

[2015] NZHC 1433

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-1083 [2015] NZHC 1433

UNDER	the Land Transfer Act 1952, section 145A
IN THE MATTER	of registered caveat 9865590.1 on CT NA18B.54
BETWEEN	ASB BANK LIMITED (398445) Applicant
AND	LJ HOLDINGS (NO 1) LIMITED Respondent

Hearing:	On the papers
Counsel:	EC Gellert for applicant RO Parmenter for respondent
Judgment:	24 June 2015

JUDGMENT OF FAIRE J

This judgment was delivered by me on 24 June 2015 at 11 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Simpson Grierson, Auckland

Winston Wang & Associates, Auckland

ASB Bank Limited (398445) v LJ Holdings (No 1) Limited [2015] NZHC 1433 [24 June 2015]

[1]      The applicant, who has an equitable interest in the respondent’s land by virtue

of an unregistered mortgage, applied to sustain a caveat it had lodged.

[2]      At the first call of the application counsel advised that an order as moved could be made by consent.  I made the order.

[3]      In relation to costs, I ordered as follows:

[2]       Costs are reserved.  Memoranda are to be filed.  Counsel are agreed that if costs are ordered they should be assessed on a 2B basis.  The question is should costs be ordered.  The respondent shall file and serve memoranda setting its position by 2 June 2015.  The applicant shall file and serve submissions in reply by 9 June 2015.  The file shall be referred to me to determine the question of costs.

[4]      The applicant seeks costs on a 2B basis of $4,875.50 plus disbursements of

$590. The calculation appears to be a correct 2B calculation.

[5]      The respondent had sought to use the s 145A provisions of the Land Transfer Act 1952 as a way of enforcing advice as to the amount  required to settle the mortgage from the applicant Bank.  The caveat approach adopted, clearly, is not the correct way to deal with that problem.

[6]      The applicant is successful in this case.  I see no reason to depart from the normal position required by r 14.2(a), namely that the person who fails with respect to an application should pay costs to the party who succeeds.

[7]      Accordingly,  I  order  that  the  respondent  pay  the  applicant’s  costs  of

$4,875.50 plus disbursements of $590.

JA Faire J