Austin v Piper HC Auckland CIV 2008-404-3599

[2008] NZHC 2581

IN THE HIGH COURT OF NEW ZEALAND

CIV 2008-404-3599

BETWEEN  MATTHEW GERALD AUSTIN Plaintiff

ANDPATRICIA JANE PIPER Defendant

Hearing:         24 July 2008

Appearances: J H Hunter for Plaintiff

J McCartney for Defendant

Judgment:      18 September 2008 at 4 pm

JUDGMENT OF ASSOCIATE JUDGE ROBINSON

This judgment was delivered by me on 24 July 2008 at 3pm, Pursuant to Rule 540(4) of the High Court Rules

Registrar/Deputy Registrar

Date……

Solicitors:           Jones Young, PO Box 189, Shortland St, Auckland

Graeme Skeates Law, PO Box 56179 Dominion Rd, Auckland

J H Hunter, Barrister, Auckland

J McCartney, Barrister, PO Box 47 114, Ponsonby, Auckland

MATTHEW GERALD AUSTIN V PATRICIA JANE PIPER HC CIV 2008-404-3599  18 September 2008

[1]      The plaintiff’s application for an order for possession of property situated at

17 Tirotai Crescent, Westmere by way of summary judgment has been settled on the basis that the defendant will vacate that property on 3 August 2008. Consequently, the application for summary judgment has been adjourned to 6 August 2008. On the defendant vacating the property the plaintiff will be discontinuing these proceedings.

[2]      The plaintiff now seeks costs. The plaintiff’s application for costs is opposed by the defendant.

[3]      In support of the application for costs, it is submitted on behalf of the plaintiff that the defendant had no valid or proper defence to these proceedings. The plaintiff purchased  the  property  occupied  by  the  defendant  at  a  mortgagee  sale.  An application by the defendant to restrain the mortgagee sale was dismissed by Winkleman J on 20 June 2008.

[4]      The  plaintiff  also  seeks  costs  in  connection  with  an  application  by  the defendant for discovery.

[5]      The   costs   being   sought   are   assessed   on   a   2B   basis   together   with disbursements. Those costs are estimated to be in the vicinity of $7,840.

[6]      In opposing the application for costs, counsel for the defendant emphasised that the application for summary judgment had proceeded with some haste. It was also pointed out that there had been no request from the plaintiff for the defendant to vacate the property prior to the issue of the application for possession and summary judgment. Counsel for the defendant informed the court that on receiving evidence from the plaintiff to the effect that the plaintiff was a bona fide purchaser, the defendant accepted her counsel’s advice and agreed to give up vacant possession to the plaintiff.

[7]      Both counsel in their submissions to me emphasised the strength of their respective cases. I do not consider it necessary to make any findings with regard to the strength of each parties case. However, the fact that the plaintiff will vacate the

property supports the conclusion that there was some merit in the plaintiff’s application. Normally a successful plaintiff is entitled to costs on the basis that a party who fails with respect to a proceedings should pay the costs to the party who succeeds (see rule 47(a) High Court rules).

[8]      Rule 48(d) sets forth circumstances which would justify a reduction in costs. That rule concludes with the following provision:

Some other reason exists which justifies the court refusing costs or reducing costs despite the principle that the determination of the costs should be predictable and expeditious.

[9]      The defendant after perusing the plaintiff’s evidence has concluded that she should vacate the property. That attitude has significantly reduced the costs that could be incurred by the plaintiff. In the circumstances, I propose to provide the defendant  with  a  substantial  credit  on  the  basis  that  she  will  give  up  vacant possession of the property to the plaintiff on 3 August 2008.

[10]     Consequently,  provided  the  defendant  gives  up  vacant  possession  of  the property to the plaintiff on 3 August 2008, then the defendant shall be required to pay 50% of the costs of the plaintiff on a 2B basis plus the plaintiff’s disbursements as fixed by the registrar.

[11]     On the other hand if the defendant does not give up vacant possession on 3

August 2008 the court’s basis for reducing the costs to be paid by the defendant would be incorrect and the contribution by the defendant to the plaintiff’s costs will need to be reassessed. In this respect, I bring to the attention of the parties rule

48(C)(3)(b)(v) whereby the court may increase costs if the defendant failed without

reasonable justification to accept an offer of settlement.

Associate Judge Robinson