Duncan v Taylor

[2012] NZHC 2875

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2007-404-296 [2012] NZHC 2875

BETWEEN  BL DUNCAN, AL DUNCAN AND BC MCNIECE AS TRUSTEES OF THE BL AND AL DUNCAN FAMILY TRUST Plaintiffs

ANDRE TAYLOR First Defendant

ANDLK ELDER AND WYNDHAM TRUSTEES LIMITED

Second Defendants

ANDRFD OTTER AND S EDWARDS Third Defendants

ANDTHE AUCKLAND CITY COUNCIL Fourth Defendant

ANDTHE REGISTRAR GENERAL OF LANDS

Fifth Defendant

Hearing:         On the papers

Counsel:         LJ Kearns for Plaintiffs

SA Grant and BR Saldanha for Defendants

Judgment:      1 November 2012

JUDGMENT OF RODNEY HANSEN J As to costs

This judgment was delivered by me on 1 November 2012 at 2.00 p.m., pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

BL DUNCAN, AL DUNCAN AND BC MCNIECE AS TRUSTEES OF THE BL AND AL DUNCAN FAMILY TRUST V RE TAYLOR HC AK CIV-2007-404-296 [1 November 2012]

[1]      The  defendants  seek  costs  totalling  $13,395  as  set  out  in  the  amended schedule annexed to their memorandum of 8 October 2012.   They comprise costs incurred following my judgment on liability of 31 May 2010.

[2]      In opposing an order, the plaintiffs say, first, that there is no basis for an application for costs as I did not reserve leave to make an application.  A reservation of leave was not necessary.  The defendants have the right to seek costs.  Further, in my judgment of 5 October 2011 making supplementary orders, I acknowledged that costs could be sought.   I do not understand Peters J to have suggested otherwise when considering the defendants’ application for a restraining order.[1]

[1] Minute 6 July 2012 at [8].

[3]      Most of the steps taken for which costs are sought were directed to finding a way to achieve the issue of new titles as required by my judgment of 31 May 2010. The difficulties encountered were not the fault of either party, although it was the defendants who took the initiative and sought orders which eventually led to the issue of new titles.   The plaintiffs resisted some of the later steps required and opposed the orders I made on 5 October 2011 and 5 December 2011.  However, I do not think their opposition added significantly to the costs of the process.

[4]      The remaining costs relate to the issue of charging orders, a memorandum in relation to costs and costs awarded in associated bankruptcy proceedings.  An award in relation to the costs memorandum in which the defendant sought the Registrar’s approval to disbursements is clearly not justified.  Costs awarded in the bankruptcy proceedings cannot be the subject of a costs order in this proceeding.  The plaintiffs oppose costs in relation to the charging orders on the basis that they were unnecessary.

[5]      Looking at the matter in the round, I am satisfied that no order for costs should be made.  I consider that all issues of costs can properly be disposed of by each  party bearing  their  own  costs.    The  defendants  applied  unsuccessfully for

restraining orders against the plaintiffs.  I decline to make the orders sought by the

defendant on the basis, as proposed by the plaintiffs, that they do not seek orders in relation to the restraining orders.