Benton & Son Limited v Benton

[2024] NZHC 963

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2023-419-246

[2024] NZHC 963

UNDER

the Property Law Act 2007

IN THE MATTER

of an application under s 110 of the Property Law Act 2007 and under the inherent

jurisdiction of the High Court

BETWEEN

BENTON & SON LIMITED

Applicant

AND

SHIRLEY ANNE FLORENCE BENTON

Respondent

Hearing:	On the papers
Counsel:	K Cornegé for the Applicant
Judgment:	29 April 2024

JUDGMENT OF GAULT J

(Costs)

This judgment was delivered by me on 29 April 2024 at 3:00 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

Solicitors:

Ms K Cornegé, Ms M Brady and Ms K McNicholas, Tompkins Wake, Hamilton

BENTON & SON LTD v BENTON [2024] NZHC 963 [29 April 2024]

[1]                 The applicant (BSL) seeks costs on a 2B basis. BSL discontinued the proceeding following receipt of documentation from the respondent (Ms Benton) enabling BSL to discharge the mortgage in issue in the proceeding.

Factual background

[2]BSL is the registered owner of a property in Ngāhinapōuri.1

[3]                 On 6 June 2007, a mortgage was granted to Ms Benton in respect of the property.2

[4]There are no monies owing under the mortgage.

[5]                 On 6 April 2023, BSL requested that  Ms  Benton  execute  documentation (an A&I form) to authorise the registration of a discharge of the mortgage.

[6]Ms Benton failed or refused to execute the A&I form.

[7]                 BSL was granted leave to commence this proceeding by way of originating application.  It  sought  orders  discharging  the   mortgage  granted  in   favour  of Ms Benton.

[8]Ms Benton took no steps in the proceeding.

[9]                 On 12 October 2023, before the proceeding was determined, Ms Benton provided a signed A&I form so as to enable BSL to discharge the mortgage.

[10]              BSL discontinued the proceeding by way of notice of discontinuance dated 26 October 2023.

[11]              I made timetable directions to allow Ms Benton to oppose the application for costs, but she did not do so.

1      Record of Title SA17D/260, Lot 1 Deposited Plan South Auckland 18852.

2      Mortgage No. 7359559.3, registered on the above title.

Discussion

[12]              Unless a defendant otherwise agrees, or the Court otherwise orders, a plaintiff who discontinues a proceeding against a defendant must pay costs to the defendant of and incidental to the proceeding up to and including the discontinuance.3

[13]              There is an onus on the plaintiff to persuade the Court to exercise its discretion;4 that is, to depart from the presumption.

[14]              In deciding whether it is just and equitable to exercise the discretion, the Court may consider the parties’ conduct in the matter and the reasonableness of the parties’ respective stances, including the reasons why the plaintiff brought and continued the proceeding and the defendant opposed it.5 Courts have been persuaded to exercise the discretion when the defendant’s acts or omissions have caused the litigation and then rendered it unnecessary.6 The Court will not, however, undertake a review of the merits of the plaintiff’s claim unless they are immediately apparent. To undertake a disputed merits review would result in a trial which would be contrary to the object of r 15.23.7

[15]              Here, I am satisfied that the Court should exercise its discretion displacing the presumption and order that Ms Benton pay BSL’s costs of making its originating application. BSL made several requests that Ms Benton sign an A&I form to enable the mortgage to be discharged before commencing proceedings. The originating application was only filed after reasonable attempts had been exhausted over a period of several months. Only after the first call of the application on 4 October 2023 did Ms Benton execute the A&I form, as BSL had been seeking since April 2023. It is apparent that BSL’s proceeding had merit and that BSL was put to the cost of the proceeding by Ms Benton’s earlier failure to agree to discharge the mortgage.

3      High Court Rules 2016, r 15.23.

4      Earthquake Commission v Whiting [2015] NZCA 144, (2015) 23 PRNZ 411 at [68]; Powell v Hally Labels Ltd [2014] NZCA 572 at [21].

5      Earthquake Commission v Whiting [2015] NZCA 144, (2015) 23 PRNZ 411 at [68]; Kroma Colour Prints Ltd v Tridonicato NZ Ltd [2008] NZCA 150, (2008) 18 PRNZ 973 at [12] and [29]; and Powell v Hally Labels Ltd [2014] NZCA 572 at [22].

6      Earthquake Commission v Whiting [2015] NZCA 144, (2015) 23 PRNZ 411 at [69].

7      Earthquake Commission v Whiting [2015] NZCA 144, (2015) 23 PRNZ 411 at [71].

[16]BSL is entitled to 2B costs of $7,409 and disbursements of $740 as sought.

Result

[17]Order accordingly.

Gault J