Elliot v Joe & Co Builders Limited

[2021] NZHC 2874

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-485-520

[2021] NZHC 2874

UNDER

section 142 of the Land Transfer Act 2017

BETWEEN

THOMAS ROY ELLIOT and PAULA MARIE ELLIOT

Applicants

AND

JOE & CO BUILDERS LIMITED

Respondent

Hearing:	26 October 2021
Appearances:	G Manktelow for applicants J Dallas for respondent
Judgment	26 October 2021

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[1]This is a costs matter.

[2]                 The applicants are owners of a Wellington property. The respondent and a related company formerly called Joe & Co Builders (No. 2) Ltd, but now called Ground Support (WGTN No. 7) Ltd, have both registered caveats over the property, the first in December 2012 and the second in June 2017.

[3]  Some time ago, there was an exchange of correspondence between the parties’ solicitors or counsel in which it was effectively agreed that the respondent’s caveat would be removed, it no longer serving any useful purpose.

ELLIOT v JOE & CO BUILDERS LIMITED [2021] NZHC 2874 [26 October 2021]

[4]                 However, nothing happened and in due course the applicants, through their solicitors, gave notice of their intention to make an application for the removal of the caveat. This they did, whereupon the caveat to which objection was taken was removed.

[5]                 The applicants now seek costs. So does the respondent. The view I take is that this is a situation in which costs should be left to lie where they have fallen.   As    Mr Dallas points out, it was unnecessary for the applicants to make the application that they have. They could simply have notified the Registrar under the relevant section of the Land Transfer Act whereupon the onus would have fallen on the respondent company to apply for an order sustaining the caveat. Given its approach to this application, I think it fair to infer that the respondent would not have taken that step. That said, the respondent must take some share of the responsibility for the costs that have been incurred because it could very easily have taken steps to remove its caveat when called upon to do so.

[6]For those reasons, there will be no order as to costs.

Associate Judge Johnston

Solicitors:

Guy Manktelow, Lower Hutt for applicants J D Dallas, Wellington for respondent