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.54BETWEEN
ASB BANK LIMITED (398445) Applicant
AND
LJ HOLDINGS (NO 1) LIMITED Respondent
Hearing: On the papers Counsel:
EC Gellert for applicant
RO Parmenter for respondentJudgment:
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
- AGLC
- ASB Bank Limited (398445) v LJ Holdings (no 1) Limited [2015] NZHC 1433
- Case
- [2015] NZHC 1433
- Decision Date
CaseChat Overview and Summary
The central legal issue in this case was whether the respondent should be required to pay the applicant's costs following the successful application to sustain the caveat. The respondent had attempted to use the provisions of section 145A of the Land Transfer Act 1952 to enforce advice from the applicant regarding the amount required to settle the mortgage. The court found that this approach was not appropriate, as the caveat was not the correct mechanism for dealing with such issues.
The court ordered that the respondent pay the applicant's costs of $4,875.50 plus disbursements of $590. The respondent had filed memoranda setting out its position on the issue of costs, and the applicant had filed submissions in reply. The court found that the applicant was successful in this case and that there was no reason to depart from the standard position under the High Court Rules, which requires the party who fails in an application to pay the costs of the party who succeeds. The court concluded that the respondent should pay the applicant's costs, which were calculated on a 2B basis.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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