Base Trust Ltd v Li HC Auckland CIV 2010-404-6612

[2010] NZHC 1774

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-6612

IN THE MATTER OF     an application under s 143 Land Transfer

Act to remove Caveat 7732706.1

BETWEEN  BASE TRUST LTD Applicant

ANDFRANCIS LI Respondent

Hearing:         6 October 2010

Appearances: D R I Gay for Applicant

C M Moody for Respondent

Judgment:      6 October 2010

JUDGMENT OF BREWER J

SOLICITORS

Craig Griffin & Lord (Auckland) for Applicant

Morgan Coakle (Auckland) for Respondent

COUNSEL DRI Gay

BASE TRUST LTD V LI HC AK CIV-2010-404-6612  6 October 2010

[1]      This is an originating application for an ex parte order for removal of caveat

7732706.1.  In the event, the respondent is represented.

[2]      Counsel have advised me that there is no opposition to the order for the removal of the caveat being made.   Having looked at the documents, I am of the view that an order should be made, and I make it accordingly.

[3]      The outstanding matter is costs and disbursements.  Mr Gay for the applicant has handed me a draft order for the removal of the caveat and for the payment of costs  and  disbursements  in  the  sum  of  $2,948.10,  calculated  on  a  2B  basis. Ms Moody opposes an order for costs and has given me written submissions on her client's position in that regard.

[4]      Essentially, Ms Moody does not contest the factual assertions advanced by the applicant in support of an award of costs but submits that the respondent acted reasonably in the context of the difficult personal situation between the respondent and her estranged partner.  There were Family Court proceedings, a distinct lack of trust and allegations of fraud.  In essence, when the applicant produced an agreement for sale and purchase as well as information that the value of the property was less than the amount secured by a mortgage to the ANZ Bank, the respondent required proof that she was not being misled.  Ms Moody submits that this was a reasonable attitude for her client to take.

[5]      Mr Gay, however, points to a fax from the respondent sent on 28 September

2010 in which the respondent sought to impose conditions to her personal advantage, the satisfaction of which would be prerequisite to her withdrawing the caveat.  As it happens those conditions, which related to the accounting by the ANZ Bank of the sale proceeds to the payment of a loan which was guaranteed by the respondent plus confirmation by the bank that it would release her from any further indebtedness to the bank in respect of the applicant, have been successfully negotiated by the respondent.  However, the point that Mr Gay makes is that having received that fax of 28 September, and having an agreement for sale and purchase that was time critical,  the  applicant  was  left  with  no  choice  other  than  to  take  this  urgent proceeding.

[6]      In matters regarding legal contests between estranged partners, issues of legal costs are always divisive.  I find this matter to be quite finely balanced and therefore I  am  going  to  follow  the  convention  or  the  practice  that  a  successful  party  is generally entitled to costs.   I make an order accordingly in the terms set out by

Mr Gay in his draft order.

Brewer J