Dimock v De'Ath HC Auckland CIV 2007-443-312

[2008] NZHC 2539

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CIV 2007-443-312

IN THE MATTER OF     an application pursuant to section 145A of the Land Transfer Act 1952

BETWEEN  JANET THERESE DIMOCK Applicant

ANDPAUL MCGUIRE DE'ATH Respondent

Hearing:         (on papers)

Appearances: Mr B Stewart QC for Applicant

D G Iggulden for Respondent

Judgment:      28 August 2008 at 12 noon

JUDGMENT OF ASSOCIATE JUDGE DOOGUE [on Costs]

This judgment was delivered by me on

28.08.08 at 12.00 noon, pursuant to

Rule 540(4) of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Counsel:

Mr B Stewart QC, Auckland

D Iggulden, Welsh McCarthy Solicitors, P O Box 434, Hawera

DIMOCK V P DE'ATH HC NWP CIV 2007-443-312  28 August 2008

[1]      This proceeding was filed on 25 June 2007 on 7 March 2008 counsel advised the Court that the matter had settled and that the only issue was that of costs.  On 7

March 2008 I directed that counsel file memoranda which are now to hand.

[2]      Both  sides  in  their  memoranda  essentially  justify  their  position.     The applicant’s counsel says that it was necessary for the applicant to file the application for order that caveat not lapse in order to protect ththe applicant’s position and the respondent takes the opposite view saying that the applicant’s position was already protected by an undertaking that had been given to her.

[3]      I intend to be guided by the remarks of Faire AJ in Scaffold Shore Load

Limited v Gill and Gundry Concrete Construction Limited  HC AK, CIV 2006-404-

1207, 30 June 2006.

4.    The defendant, by counsel, has reviewed the history of the dispute.  For reasons, which I will shortly explain, it is not appropriate that I make any determination of the merits of this case.

5.   Because the plaintiff has effectively elected not to proceed, the position is analogous to that which applies where a plaintiff discontinues.  When that occurs r 476C of the High Court Rules applies.

6.   The Rule raises a presumption that a discontinuing party will be liable for costs: North Shore City Council v Local Government Commission 9

PRNZ 182.  Generally, the Court will not inquire into the merits of the case unless the answer is clear and obvious.

[4]      The Scaffold Shore Load Limited case was one involving an application to place a company in liquidation which the plaintiff advised the Court could be struck out at its second call.  An order was made accordingly.  Although the subject matter of that proceeding was different from the present, I nonetheless consider that the analogy  with  the  discontinuance  applies  with  equal  force  to  an  originating application of the type which the applicant filed in this case.

[5]      This is not a case where the  merits  are  clear  and  obvious  and  it  is  not appropriate for me to try and make some assessment of the merits on the basis of counsels respective submission.

[6]      I conclude therefore that the applicant should pay the costs of and incidental to this proceeding.  Costs will be on a 2B basis together with disbursements fixed by

the Registrar.

J.P. Doogue

Associate Judge