Capital Sales Properties Limited v N K Henderson Builders Limited HC Wellington CIV 2010-485-725

[2010] NZHC 1515

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2010-485-725

UNDER  Land Transfer Act 1952

IN THE MATTER OF     a caveat against dealings, instrument no.

8467719.1

BETWEEN  CAPITAL SALES PROPERTIES LIMITED

Applicant

ANDN K HENDERSON BUILDERS LIMITED Respondent

Counsel:         J D Haig for the Applicant

B Sheehan for the Respondent

Judgment:      11 June 2010

JUDGMENT AS TO AWARD OF COSTS ASSOCIATE JUDGE CHRISTIANSEN (On the papers)

This judgment was delivered by me on

11.06.10 at 2:30 pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors/Counsel

J D Haig, Barrister, Wellington – [email protected]

B Sheehan, Avison Reid Lawyers, Lower Hutt – [email protected]

CAPITAL SALES PROPERTIES LIMITED V N K HENDERSON BUILDERS LIMITED HC WN CIV 2010-

485-725  11 June 2010

[1]      Counsel have filed memoranda regarding costs.  The applicant seeks costs for the whole of the application on a category 2B basis.   Alternatively solicitor/client costs or on increased costs award is sought for counsel’s preparation of full submissions for the hearing.

[2]      The respondent opposes and submits costs should lie where they fall.

[3]      I have read the material provided by counsel and although I do not have the file before me, (I am in Auckland and the file is in Wellington) I have a clear impression about how the application should be dealt with.

[4]      The application was successful to the extent that the respondent withdrew its opposition shortly prior to the hearing.   But, as my earlier minute indicated, the agreement reached between the parties for the withdrawal of the caveat provided a gain for both parties.

[5]      There are assertions of fault causing costs and delays, made by both sides. My feeling is  the  respondent  was  within  its  rights  and  reasonably did  question information offered by the applicant in support of sales claims.   Building contract claims can be difficult to resolve.  The agreement reached over the applicant’s offer to retain funds appears to have been responsibly managed by both sides.

[6]      This is not an appropriate case for awarding costs and I direct they lie where they fall.

Associate Judge Christiansen