Clement v Te Rongomau

[2015] NZHC 1334

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2014-419-454 [2015] NZHC 1334

IN THE MATTER

of an application that Caveat No

9637981.1 not lapse

IN THE MATTER

of Part 19 of the High Court Rules 2009

BETWEEN

KATHLEEN FLORENCE CLEMENT Applicant

AND

SARAH JANE HARIHARI First Respondent

NEVILLE SONNY TE RONGOMAU Second Respondent

Hearing:	4 March 2015 (on papers)
Appearances:	A J Iles for Applicant
Judgment:	12 June 2015

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

This judgment was delivered by me on

12.06.15 at 3 pm, pursuant to

Rule 11.5  of the High Court Rules.

Registrar/Deputy Registrar

Date……………

CLEMENT v HARIHARI & ANOR [2015] NZHC 1334 [12 June 2015]

[1]      The  applicant  lodged  a  caveat  against  the  title  to  the  property  of  the respondents.  The brief background to this occurring was that the applicant sold her Raglan property to the respondent some years ago on the understanding that she would have the right to occupy it for the remainder of her life.  Ms Clement is an elderly lady.  She continued to live in the property but then received notice that the respondents intended to increase the rent.  The position that Ms Clement took was that it was part of the arrangements that the rent would be unvaried throughout the remainder of her life.

[2]      There were discussions  between the parties and when they could not be resolved Ms Clement lodged the caveat on the basis of what she said was secured to her by the contract between the parties, that is a lease for her life.

[3]      The respondents took steps to lapse the caveat and Ms Clement filed an originating application for an order pursuant to s 145A of the Land Transfer Act

1952.   Although initially opposing the application, the respondents subsequently took no steps to oppose the making of the order and on 19 September 2014 the Court sealed an order that the caveat not lapse.

[4]      The issue that now arises is the question of costs.  The respondents have not made any submissions concerning that matter although they were given the opportunity to do so.

[5]      The starting point is that under r 14.2(a) the respondents are to be regarded as the party who has failed with respect to the application and therefore they ought to pay costs.   No countervailing reason has been suggested to me why the principle contained in r 14.2(a) should not apply.  I therefore conclude that there ought to be a costs order.

[6]      The next issue concerns the extent of the costs order to be made.   In her memorandum filed in support of costs order dated 4 March 2015, counsel initially appears to take the view that costs should be awarded on a 2B basis “but that an

allowance is made for the legal services provided to the applicant in advance of the

hearing”.

[7]      Subsequently further down in the memorandum the contention is advanced that the respondents have contributed unnecessarily to the time and expense “the applicant faces by not advising the applicant they did not wish to proceed at an earlier date”.   This is a reference to the fact that the respondents did not tell the applicant that they were no longer opposing the application with the consequence that the applicant’s solicitors took additional steps which would have been unnecessary had they known of the correct position.

[8]      In paragraph 27 of her memorandum it becomes clear that what counsel is proposing is a 2B award of costs and disbursements and that the “uplift” represents a half share of the scale amount for preparing written submissions.

[9]      I consider that the applicant’s counsel is correct in claiming that an allowance ought to be made for the preparation of the submissions, even though in the event they were not required.   I consider that the submission that one half of the scale amount for preparing written submissions, $1,492.50, is the amount to which the applicant restricts her claim under that head is fair and reasonable.  Accordingly, I direct that the respondents are to pay the sum of $9,246.50 representing costs on a

2B basis of $8,656.50 together with disbursements of $590.

J.P. Doogue

Associate Judge