Gillette v Green

[2018] NZHC 431

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2017-442-042

[2018] NZHC 431

BETWEEN

NATHAN DANIEL GILLETTE

Plaintiff

AND

THOMAS PATTON GREEN

First Defendant

AND

ROOFPOWER INSTALLATIONS

LIMITED (FORMERLY KNOWN AS SUNPOWER LIMITED)

Second Defendant

Teleconference:

14 March 2018

Counsel:

Mr Gillette in Person

A G Stallard for First Defendant

Judgment:

14 March 2018

JUDGMENT OF CHURCHMAN J

[1]                  On 30 October 2015 Mr Gillette obtained an order as to costs and disbursements against the first defendant in these proceedings (Thomas Green) in the sum of $5,233. The cost award was made by Williams J “… for the trouble to which (Mr Green) has put the plaintiff in pursuing him to achieve discovery”.

[2]Mr Green has not paid the costs award.

[3]                  Having sealed the order as to costs Mr Gillette made a without notice application for a charging order over a property owned jointly by Mr Green and another person (Nathalie Sone Gregory-Green) (Lot 1 DP:506651, freehold register identifier 771537, Nelson Registry).

GILLETTE v GREEN [2018] NZHC 431 [14 March 2018]

[4]                  Grice J issued a minute in respect of the application for a charging order on 19 February 2018 confirming that Mr Gillette’s charging order would apply only to his interest in the jointly owned property.

[5]                  Mr Gillette also attempted to get a charging order in relation to costs awarded to him following a determination of the Employment Relations Authority in the sum of $2,565. By minute of 21 February 2018 Grice J confirmed that the proper process in respect of this sum was for a certificate of determination to be issued by the Employment Relations Authority which would then be filed in the District Court for enforcement.

[6]                  Mr Gillette applied for freezing orders and on 26 February 2018 Grice J issued a minute explaining what further documentation Mr Gillette needed to file before the Court could resolve that application.

[7]                  A further teleconference was held on 2 March 2018 before Grice J in relation to the application for freezing orders. Grice J made a timetable in relation to the filing of further documentation in relation to this application. Her minute also noted that the property against which the charging order had been registered had been sold with a settlement date of 10 March 2018.

[8]                  The conveyancing transaction in relation to the sale of the property is unable to be completed with the charging order on the title. The parties were unable to conclude arrangements satisfactory to them that would allow for the charging order to be discharged and the settlement to take place.

[9]                  On 12 March 2018 Mr Stallard, acting for Mr Green, filed an interlocutory application for discharge of the charging order. Also filed with the application were copies of email exchanges between Mr Stallard and Mr Gillette. The email exchanges were dated the prior Friday, 9 March 2018. They recorded that Mr Stallard’s client offered to pay the reasonable costs of a lawyer that Mr Gillette consulted in relation to the discharge of the charging order.

[10]              An email sent from Mr Stallard to Mr Gillette at 4.49 pm on Friday 9 March rejected Mr Green’s proposal that Mr Stallard pay him the sum secured by the charging order and relied on him to release the charge. As Mr Stallard’s memo correctly pointed out in doing so he would be in breach of his undertakings to the Bank and the purchaser.

[11]              The email repeated the offer to pay Mr Gillette’s lawyers reasonable costs in relation to the discharge and said that if Mr Stallard had not heard from Mr Green by the following Monday morning (12 March) he would apply to the Court for a discharge and seek for indemnity costs.

[12]              An application was received on 12 March seeking a without notice discharge order. Given the history of this matter it was not appropriate for the application to be dealt with on a without notice basis and Grice J directed on 13 March 2018 the application be served and an urgent teleconference was scheduled for 14 March 2018.

[13]              At the teleconference this morning the parties were unable to resolve the matter with the sticking point being the quantum of costs that the applicant for the discharge order might be entitled to in respect of that application.

[14]              It is clear that in order for the property to be sold the charging order needs to be discharged. Given the dispute between the parties as to costs in respect of the application for discharge the order (the 2B costs on the application would exceed the sum secured by the charging order) it is appropriate that the $5,233 secured by the charging order be paid into Court pending further order of the Court.

[15]              It is also appropriate that Stallard Law Ltd only present for registration at LINZ the order discharging the charging order contemporaneously with the payment of the full amount of the charging order into the High Court at Nelson and cleared funds for the personal undertaking that the funds will not be reversed.

[16]              In relation to the fixing of costs in this matter I direct the applicant to file a memorandum of no more than five pages in length in support of any costs application. Such memorandum to be filed within five working days of the date of this order.

[17]              I direct Mr Gillette to file any memorandum in reply (again of no more than five pages in length) within five working days of receipt by him of the applicant’s memorandum.

[18]Costs will then be determined on the papers.

[19]              I further direct that, pending resolution of this matter the sum paid into Court be placed in an interesting bearing account.

Churchman J

Solicitors:

Stallard Law Ltd, Nelson for First Defendant