Ding v Ai

[2020] NZHC 858

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-2160

[2020] NZHC 858

UNDER

the Land Transfer Act 2017 and the Property (Relationships) Act 1976

IN THE MATTER

of an application to sustain notice of claim of interest 111552636 against record of title NZ98A/889

BETWEEN

TIANPING DING

Applicant

AND

WEI AI

Respondent

Hearing:	On the papers
Counsel:	SWM Piggin for the Applicant R Reed for the Respondent
Judgment:	30 April 2020

JUDGMENT OF GAULT J

(Costs)

This judgment was delivered by me on 30 April 2020 at 4:00 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:

Mr SWM Piggin, Barrister, Auckland

Ms P Zheng (applicant’s instructing solicitor), Northern Legal Ltd, Silverdale Ms R Reed, Prestige Lawyers Ltd, Auckland

DING v AI [2020] NZHC 858 [30 April 2020]

[1]                  In this proceeding by way of originating application, following the commencement of substantive proceedings by the applicant in the Family Court to determine his claim  that  a  property  is  relationship  property,  I  made  an  order,  by consent, on 11 February 2020 that his notice of claim not lapse until further order of the Court or of the Family Court.

[2]                  The applicant sought costs and I directed the filing of memoranda and indicated I would deal with costs on the papers. The applicant seeks 2B costs of $7,170 plus disbursements of $916.

Discussion

[3]                  Where caveat or notice of claim proceedings are determined on the basis that the caveat/notice of claim not lapse pending the determination of separate substantive proceedings to ascertain the  underlying  interest,  issues  can  arise  as  to  costs.  One argument is that sustaining the caveat is akin to refusing summary judgment or granting an interim order and costs should be reserved to follow determination of the underlying claim. However, the competing argument is that, in relation to interlocutory applications, except for summary judgment, the rules provide for costs generally to be fixed following determination and, in any event, caveat/notice of claim proceedings are discrete proceedings brought by way of originating application which are determined, and costs should be fixed, even though the final order may be subject to the determination of a separate proceeding.

[4]                  I do not accept the respondent’s submission that costs should lie where they fall or be reserved pending the determination of the Family Court proceeding. Applying the cost rules to this proceeding in a principled way, I consider costs on the originating application should be determined now under the principle in r 14.2(1)(a) of the High Court Rules 2016.1 The originating application is a discrete proceeding in its own right.2 Costs should ordinarily follow the event notwithstanding that in a proceeding of this nature, the caveator need show only an arguable case for the claimed caveatable interest and the underlying claim remains to be determined in a separate

1      Samson v Mourant [2016] NZHC 1119 at [11]-[14].

2      At [16]-[17]; and Official Assignee v Menzies (No 2) HC Auckland CIV-2010-404-005457, 4 May 2011 at [5].

and substantive proceeding.3 Given that an application to sustain a caveat has similarities to an application for interlocutory injunction, this practice is consistent with the general rule that costs on an interlocutory application are dealt with at the time the application is determined rather than being held over until the outcome of the substantive proceeding is known.4 Of course, costs are at the discretion of the Court but the nature of the caveat/notice of claim proceeding is not itself a reason to reserve let alone refuse costs.

[5]                  I also do not accept the respondent’s alternative submission that costs should be refused under r 14.7(g), which provides that the Court may refuse to make an order for costs or may reduce the costs otherwise payable if some other reason exists which justifies the Court refusing costs or reducing costs despite the principle that the determination of costs should be predictable and expeditious. Here, the applicant succeeded in obtaining the order sought, albeit by consent. The respondent relied on cases where the Court has said that costs may be reduced or refused where a respondent abides the decision of the Court.5   They do not assist in this context.    The applicant may not have had to file the originating application if the respondent had communicated inviting the applicant to commence substantive relationship property proceedings before applying administratively to the Registrar to lapse the notice under the Land Transfer Act 2017.6 In any event, a successful party seeking scale  costs  need  not  show  that  the   unsuccessful   party  acted   unreasonably. The respondent benefits from not fully contesting the proceeding in the sense that scale costs would have been higher if there had been a defended hearing.

[6]                  The respondent also sought to engage on the merits of the underlying relationship property claim, annexing material from an affidavit filed in the Family Court. The Court is in no position to assess the merits of the underlying claim on this costs application and it would be inappropriate to try. Those merits are for the Family Court proceeding.

3      DW McMorland and others Hinde McMorland & Sim Land Law in New Zealand (online ed, LexisNexis) at [10.020A].

4      Samson v Mourant [2016] NZHC 1119 at [16]-[17]; and Official Assignee v Menzies (No 2) HC Auckland CIV-2010-404-005457, 4 May 2011 at [5].

5      Wang v District Court [2015] NZHC 1611, [2015] NZAR 1678; and McGreevy v CRC Ltd

[2019] NZHC 1143.

6      See also Samson v Mourant [2016] NZHC 1119 at [20]-[23].

[7]I conclude the applicant is entitled to costs on its originating application.

Result

[8]The applicant is entitled to 2B costs of $7,170 plus disbursements of $916.

Gault J