Edmunds v Lauder

[2013] NZHC 3286

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2012-412-926 [2013] NZHC 3286

BETWEEN  GILBERT JOHN EDMUNDS and RUTH MARGARET EDMUNDS Plaintiffs

ANDMARK BEDFORD LAUDER First Defendant

THE REGISTRAR GENERAL OF LAND Second Defendant

Hearing:                   9 December 2013 (On the papers) Appearances:  L A Andersen for Plaintiffs

SMD Guest for First Defendant

Judgment:                10 December 2013

JUDGMENT OF PANCKHURST J (RE:  COSTS)

Order removing caveat

[1]      In addition to costs Mr Lauder seeks an order that the caveat registered over his title be removed.  There is no opposition to this request.  The caveat remained in place by consent pending determination of this proceeding.   The plaintiffs’ claim having been dismissed, I order that the caveat be removed by the Registrar-General of Land.

Costs

[2]      Mr Lauder seeks indemnity, or increased, costs totalling $56,774.37 inclusive of  surveying  costs.    An  award  of  indemnity  or  increased  costs  is  opposed  by Mr and Mrs Edmunds.  They accept that costs must follow the event, but maintain

that 2B costs of $29,452 are appropriate.

EDMUNDS v LAUDER AND ANOR [2013] NZHC 3286 [10 December 2013]

[3]      A number of matters were advanced in support of indemnity/increased costs:

(a)       that  the  allegation  of  adverse  possession  was  made  without  “any

evidence and was therefore without merit”,

(b)      that the first defendant was put to additional expense following the

plaintiffs’ non-compliance with their discovery obligations,

(c)      that offers of settlement were refused without reasonable justification, and

(d)that the proceeding was continued with when shown to be frivolous and without merit.

[4]      Various factual points were advanced in support of these contentions.  These included that:

(a)       Mr Lauder was required to apply to have the caveat lapse because the

Edmunds would not file an application for an order sustaining it,

(b)Mr Lauder then assumed the initiative in relation to a consent memorandum  whereby  the  caveat  was  sustained  pending determination of this proceeding

(c)      a letter from Mr Withnall QC invited the Edmunds to discontinue their claim given asserted defects outlined in the letter,

(d)      initial discovery was incomplete and only remedied at Mr Lauder’s

insistence,

(e)      the Edmunds failed to disclose adjustments made to the boundaries prior to selling the land to Mr Lauder,

(f)      the Edmunds declined, even post-decision, to discuss correction of the boundary lines leaving substandard fences in place, and

(g)the Edmunds have recently marketed their land for sale without any response to Mr Lauder’s offer to purchase the Edmunds land and thereby resolve the boundary dispute.

[5]      I am not persuaded that the test for an award of indemnity costs is met. Rule 14.6(4) identifies six factors which may justify indemnity costs, but only two seem to have application, namely that the proceeding was improperly continued with and a Court order (as to discovery) was breached.  As to the former, the claim failed because there was insufficient evidence of adverse possession in the 12 years to

1944.  However, it cannot be said that there was no evidence to establish this key element,  rather  the  approach  and  evidence  advanced  by  the  Edmunds’s  expert witness was not accepted.  It does appear there was a breach of the discovery order, but this seems to have been remedied in a relatively routine manner and there is nothing to  indicate  how and  the extent  to which  Mr  Lauder  incurred  increased expense as a result.

[6]      While it is evident that the Edmunds have adopted an obdurate approach before, during and subsequent to the hearing I am not persuaded that this has contributed unnecessarily to the time or expense of the proceeding (r 14.6(3)) over and above that which is normal in a proceeding of this kind.  In other words, this non-neighbourly attitude is not shown to justify costs above scale.

[7]      For these  reasons  I am  not  persuaded  that  indemnity/increased  costs  are appropriate and I award 2B costs in relation to both the caveat and the substantive proceedings.    I  approve  second  counsel  in  relation  to  the  substantive  hearing. Mr Lauder’s memorandum contains only an indicative 2B calculation of $31,442, so I leave finalisation of that figure to counsel in the first instance.  It is also unclear what disbursements are sought on a 2B approach.  I take it that surveying costs of

$5040.70 are claimed, and this I consider appropriate.   I assume that counsel will readily agree the final figures in light of this decision.

Solicitors:

Polson McMillan Limited, Dunedin

Sam Guest Law Limited, Dunedin