Cressida Capital One Limited v Mapp

[2013] NZHC 2180

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2013-485-001407 [2013] NZHC 2180

IN THE MATTER OF

Section 143 of the Land Transfer ACt

1952

BETWEEN

CRESSIDA CAPITAL ONE LIMITED Plaintiff

AND

VANESSA LOUISE MAPP First Defendant

MILES BUCKINGHAM Second Defendant

Judgment:                27 August 2013

JUDGMENT OF COLLINS J [As to Costs]

[1]      In these proceedings, Cressida Capital One Ltd (Cressida) was successful in removing a caveat on a title to a property, lodged by the defendants.

[2]      The amount that would be payable by the defendants to Cressida on a regular scale 2B basis would be $8,258.50 plus disbursements of $533.20.  This judgment explains  why  I  am  ordering  that  Cressida  be  paid  costs  of  $11,760   plus disbursements, being the amount of its actual and reasonable costs.

[3]      Rule 14.6(4) of the High Court Rules provides:

(4)      The court may order a party to pay indemnity costs if—

(a)      the party has acted vexatiously, frivolously, improperly, or unnecessarily in commencing, continuing, or defending a proceeding or a step in a proceeding;  or

(b)       the party has ignored or disobeyed an order or direction of the court or breached an undertaking given to the court or another party;  or

CRESSIDA CAPITAL ONE LIMITED v MAPP [2013] NZHC 2180 [27 August 2013]

(c)       costs are payable from a fund, the party claiming costs is a necessary party to the proceeding affecting the fund, and the party claiming costs has acted reasonably in the proceeding; or

(d)       the person in whose favour the order of costs is made was not a party to the proceeding and has acted reasonably in relation to it;  or

(e)       the party claiming costs is entitled to indemnity costs under a contract or deed;  or

(f)       some other reason exists which justifies the court making an order for indemnity costs despite the principle that the determination  of  costs  should  be  predictable  and expeditious.

[4]      The situations outlined in r 14.6(4)(a)-(e) concern the way in which the party has  conducted  itself  in  the  proceedings,  however  that  list  is  not  exhaustive. Indemnity costs will be appropriate whenever a party has behaved either badly or very unreasonably.1    One circumstance that falls within that provision is where proceedings are commenced or continued in wilful disregard of known facts or clearly established law.2

[5]      I am satisfied here that the defendants acted so unreasonably as to entitle the plaintiff to indemnity costs. They should never have lodged the caveat in the manner that they did. There was plainly:

(1)       No arguable basis for the claimed caveatable interest.

(2)       The caveat was lodged deliberately to obstruct the mortgagee sale.

(3)The first defendant wilfully endeavoured to disrupt the mortgagee sale and disregard court orders.  In particular, it is extraordinary that the first defendant filed a further caveat within approximately an hour and a half of the Court determining Cressida’s first application to

remove the first defendant’s caveat.

1      Bradbury v Westpac Banking Corporation [2009] NZCA 234, [2009] 3 NZLR 400 at [27].

2 At [29].

[6]      This   was   one   of   those   unusual   cases   where   the   time   involved   in commencement of the proceeding was greater than would normally occur.  The reasons for this:

(1)There was urgency.  The caveat was lodged on the afternoon before the due date of the unconditional mortgagee sale.

(2)A copy of the caveat was not provided by the defendants despite requests within 45 minutes of the caveat having been lodged.

(3)The application was said to be opposed but no papers in opposition were actually filed.

[7]      For these reasons I am satisfied that the threshold in r 14.6(4) is met.  In these circumstances I have no hesitation in ordering costs of $11,760 plus disbursements

of $533.20.

D B Collins J

Solicitors:

JT Law, Wellington for Plaintiff