Corbans Viticulture Limited v Two Moore Wines Limited HC Blenheim CIV 2009-406-267

[2010] NZHC 593

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CIV-2009-406-267

IN THE MATTER OF     Caveat No. 8182104, Marlborough Land

Registry

BETWEEN  CORBANS VITICULTURE LIMITED Applicant

ANDTWO MOORE WINES LIMITED Respondent

Judgment:      15 March 2010 at 3.00 pm

JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL

This judgment was delivered by Associate Judge Gendall on 15 March 2010 at 3.00 pm pursuant to r 11.5 of the High Court Rules.

Solicitors:           Fletcher Vautier Moore, Lawyers, PO Box 90, Nelson 7040

Corban Revell, Lawyers, PO Box 21-180, Waitakere City

CORBANS VITICULTURE LIMITED V TWO MOORE WINES LIMITED HC BLE CIV-2009-406-267  15

March 2010

[1]      The application by the applicant to sustain its caveat in this proceeding may be seen to a certain extent to have succeeded in that the interim order preserving the caveat made on 11 December 2009 was on 10 February 2010 extended in my Minute of that date until further order of this Court was made.

[2]      In my 10 February 2010 Minute as a condition of extending the caveat, I directed that by 28 February 2010 the applicant was to file substantive proceedings to determine the issues between the parties.

[3]      That Minute indicated also that there was an issue with respect to costs between the parties in this matter.  Accordingly, I directed that memoranda were to be filed on the issue and these were to be referred to me for a decision on costs based upon the material before the Court.

[4]      Counsel for the applicant has now filed his memorandum as to costs dated 15

February 2010 and counsel for the respondent has filed a response memorandum dated 26 February 2010.

[5]      From  those  memoranda  it  is  clear  that  counsel  for  the  applicant  seeks payment of costs on this application from the respondent on a Category 2B basis. He maintains the very purpose of the application to sustain the caveat here has been achieved, in that the caveat is retained pending a substantive decision in the dispute between the parties.

[6]      The  applicant  nevertheless  accepts  that  under  the  circumstances  here the respondent does not “concede” the caveat application but rather in a practical sense, it has agreed that the caveat can remain in place pending the substantive hearing of the dispute between the parties.

[7]      What is clear to me is that the interim orders made here preserving the caveat in the mean time do not finally determine the applicant’s application.  Rather, I am satisfied they are an interim position agreed to by the respondent simply to preserve the status quo while the applicant is  required  to pursue substantive proceeding.

These will of course determine matters at issue between the parties including in the caveat proceedings.

[8]      Although r 14.2(a) High Court Rules provides that as a matter of general principle “... the party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds”, in my view no party here has “failed” at this point.   The interim orders issued to preserve the caveat were made by consent against the background of an undertaking by the applicant to file substantive proceedings to determine all matters at large.

[9]      In my view costs on the present application should simply be reserved at this point to be dealt with when the outcome of the final substantive proceedings is known.  At that point the validity of the existing caveat will be clear and a realistic appraisal of the end result will be apparent – Packing In Ltd (in liq) known as Bond Cargo Ltd v Chilcott (2003) 16 PRNZ 869 (CA).

[10]     For these reasons there is to be no order for costs made at this point with regard to the present application to sustain the caveat.  Those costs are reserved to be dealt with upon final disposal of the substantive proceeding.

‘Associate Judge D.I. Gendall’