French v French HC Auckland CIV 2010-419-661

[2010] NZHC 1434

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-419-661

UNDER  The Land Transfer Act 1952

IN THE MATTER OF     an Ex Parte Application for an Order to

Remove a Caveat

BETWEEN  GEORGE ROBERT FRENCH AND DELWYN PAMELA FRENCH Applicants

ANDROBERT WAYNE FRENCH Respondent

Hearing:         18 June 2010

Appearances: Mr E F Mills for applicant (on papers) Judgment:       17 August 2010 at 4 p.m.

JUDGMENT OF ASSOCIATE JUDGE DOOGUE [on Costs]

This judgment was delivered by me on

17.08.10 at  4 pm, pursuant to

Rule 11.5  of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:

Mr G O’Brien, Insight Legal, Takanini –  [email protected]
Evan F Mills, Barrister, Canterbury Building, 47 High Street, Auckland

Copy:

R W French, Back Miranda Road, R D 6, Thames

FRENCH V  FRENCH HC AK CIV-2010-419-661  17 August 2010

[1]      Submissions  have  been  filed  in  this  matter  by Mr  Evan  Mills  who  was counsel for the applicant at the hearing of the originating application for removal of caveat (his name was mistakenly omitted from the judgment).   In the submissions made the applicants assert that this case is one where the Court ought to make an award of indemnity costs.

[2]      The brief background to this case is that the respondent lodged a caveat against the title to a farm property owned by his brother and his wife.  He did so as part of an on-going dispute about the wills of the brothers’ parents which were made in the 1980’s.  The respondent sought to propound a later will of his father, executed

3 May 2000, but he was unsuccessful in his attempts to do so, which were declined by Venning J in his judgment in CIV-2003-419-316.  Years on, the respondent still seems unable to accept that matters are not as he had hoped they would be so far as his  parents’  wills  are  concerned.     The  filing  of  the  caveat  is  just  another manifestation of his inability to accept the position.

[3]      The only other aspect of the background that I will mention is that the caveat which he filed was alleged to be based upon a debt secured by mortgage over the brother’s property and securing a debt which the brother and his wife owed to the parents’ estate.   The caveat was entirely flawed because the debt had been repaid long ago and anyway the respondent, not being the trustee and executor of his father’s estate – the public trustee was – had no entitlement to take any steps to prosecute a claim for the debt.

[4]      What is more, the respondent lodged the caveat at a time when his brother and his wife were on the verge of transferring their farm property pursuant to an agreement for sale and purchase and was no doubt designed to cause maximum inconvenience and discomfiture to them.

[5]      I heard the matter in circumstances of urgency and gave judgment removing the caveat on 21 June 2010.  I did so because this was a case where it was crystal clear that the respondent had no entitlement to lodge a caveat and, further, he must

have known that, having regard to the terms of the judgment of Venning J which I

referred to above.

[6]      The applicants’ case for indemnity costs or increased costs is brought under r

14.6.   While cases in which such an award is made are exceptional, this is an appropriate case.  In my view this is a very clear case where the costs come within r

14.6 (4) being a case where:

The party has acted vexatiously, frivolously, improperly, or unnecessarily in commencing,  continuing,  or  defending  a  proceeding  or  a  step  in  a proceeding.

[7]      In   the   Court   of   Appeal   judgment   in   Bradbury   v   Westpac   Banking Corporation [2009] NZCA 234, Baragwanath J stated the position of the Court of Appeal in the following terms:

[29]We therefore endorse Goddard J's adoption in Hedley v Kiwi Co-op Dairies Ltd (2002) 16 PRNZ 694 (HC), at para 11, of Sheppard J's summary in Colgate-Palmolive Co v Cussons Pty Ltd, at para 24. While recognising that the categories in respect of which the discretion may be exercised are not closed (see r 14.6(4)(f)), it listed the following circumstances in which indemnity costs have been ordered:

(a)       the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud;

(b)particular misconduct that causes loss of time to the Court and to other parties;

(c)commencing or continuing proceedings for some ulterior motive;

(d)doing  so  in  wilful  disregard  of  known  facts  or  clearly established law;

(e)       making allegations which ought never to have been made or unduly prolonging a case by groundless contentions, summarised in French J's “hopeless case” test.

[8]      The continued opposition by the respondent falls into categories (c), (d) and

(e).

[9]      As I have noted, though, the rule empowers the Court to grant an indemnity against costs “reasonably incurred by a party”.  That is, the costs must be reasonable.

[10]     The total costs claimed are $20,139.17.  They fall into a number of categories which I now discuss.

[11]     The main component is the bill of costs rendered by Mr Mills in the sum of

$7,794.30 (approximately a 1/3 of the overall cost).  The invoice rendered shows that the services charged for were preparation of proceedings and then preparation for appearance and appearance on two occasions, 15 June and 18 June 2010.  The reason for the two appearances was that at the first calling of the matter I adjourned the mater to give the respondent an opportunity to take proper steps to advance his opposition  to  the  application  removing  the  caveat,  but  noting  because  of  the

circumstances of the case he would have to act promptly, given that on 4th June 2010

Priestley J had referred the matter to the Auckland High Court on the basis that it was urgent.

[12]     Mr Mills’ attendances therefore were provided in circumstances of urgency. He had to come to Court on two occasions and prepared submissions.  He charged out his time at the rate of $350/hour.  In my view there can be no quarrel with an account at that level submitted by counsel of his seniority which was appropriate to the case which the applicants brought before the Court.

[13]     There had been an earlier invoice submitted by other counsel, Mr Ian Black, who had looked after the proceeding on an interim basis and appeared at the High Court on 9 June when the matter was called before Associate Judge Bell and at which directions were sought.  Mr Black’s fee was $850 to which were added GST and a Court filing fee to bring his total charges to $1,156.25.  I consider that those charges, too, are reasonable in the circumstances.

[14]     A further invoice was charged for legal services by a Thames practitioner, Jane Hunter. Ms Hunter had acted originally in the dispute over the father’s estate. She extracted files from the archive and generally assembled material to send to the instructing solicitors; she also swore an affidavit and the legal executive arranged for the swearing of the male applicant’s affidavit.  The total charge was $315 which is unexceptional.

[15]     A further major cost was process servers’ fees of $1,318.50.   These were charged for a number of trips to Miranda in attempts to serve the respondent in circumstances of urgency and then to serve the various orders and judgments on the respondent.   Those charges, too, seem to me reasonable.   The remainder of the account is made up of filing fees and Landinfonet fees and GST.

[16]     I  am  satisfied  that  overall  the  charges  were  reasonably  incurred  by  the applicants and in my view it is appropriate to make an order directing the respondent

to pay the entire costs on an indemnity basis.

J.P. Doogue

Associate Judge