Golestaneh v Tang

[2024] NZHC 3887

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-980

[2024] NZHC 3887

UNDER

the Land Transfer Act 2017

IN THE MATTER

of Caveat no. 12954918.1

BETWEEN

MARJANEH SEYEDEH GOLESTANEH

Applicant

AND

FEI TANG and JUN YANG

Respondents

Hearing:	13 December 2024 (Telephone Hearing)
Counsel:	A R Gilchrist for Applicant P J Napier for Respondents
Judgment:	18 December 2024

JUDGMENT OF ASSOCIATE JUDGE LESTER

(in respect of caveat and costs in respect of stay)

This judgment was delivered by me on 18 December 2024 at 12:00pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

GOLESTANEH v TANG [2024] NZHC 3887 [18 December 2024]

[1]                 Up until Thursday 12 December 2024,  Ms Golestaneh  maintained  she  had a contract to purchase an Albany property subject to her caveat number 12954918.1 registered against Identifier NA 106C/34.

[2]                 On 26 November 2024, I released a judgment sustaining Ms Golestaneh’s caveat on conditions.1

[3]                 Earlier in 2024, the vendors of the property (the respondents) returned the deposit to Ms Golestaneh that she had paid as required by the contract. The vendors at that time took the view the contract was frustrated. Ms Golestaneh did not accept that and maintained until 12 December 2024 that she had a valid contract.

[4]                 In sustaining Ms Golestaneh’s caveat, one of the conditions I ordered was that she again pay the deposit.2 As Ms Golestaneh maintained she had a valid contract she could not be heard to say the deposit was not payable.

[5]                 Ms Golestaneh filed an appeal against my judgment and sought a stay of the conditions. On 5 December 2024, the stay was granted and the conditions attaching to my order sustaining her caveat were suspended, save for the condition that she pay the deposit.3 Again, Ms Golestaneh’s appeal was based on her contract being extant so again, even on her view of matters, the deposit had to be paid. The suspension of the other conditions maintained the status quo while the appeal was pursued, subject to reasonably tight timetabling obligations, but at the risk of labouring the point, the status quo was that the deposit was payable even without the condition that it be paid.

[6]                 As I have said, it was  a  condition  of  the  stay  that  the  deposit  be  paid. Ms Golestaneh did not pay the deposit and the vendors, having issued the requisite notice under the contract, cancelled the contract on 13 December 2024 for non-payment of the deposit. In fact, Ms Golestaneh, in an email sent from her husband’s email address, purported to cancel the contract on 12 December 2024.

1      Golestaneh v Tang [2024] NZHC 3560.

2      At [28(a)].

3      Golestaneh v Tang [2024] NZHC 3693.

[7]                 With the vendors having cancelled the contract, their counsel, Mr Napier, sought on an urgent basis a telephone conference seeking an order that the caveat be removed.   That    telephone   conference    was   held    at    4.15pm    on   Friday   13 December 2024.

[8]                 Mr Gilchrist, counsel for Ms Golestaneh, realistically accepted that with his client having purported to cancel the contract, she could not seek to maintain the caveat. That was an entirely proper position for him to take.

[9]                 Accordingly, there is an order that caveat 12954918.1 registered against Identifier NA106C/34 lapse.

[10]             Mr Napier, at the telephone conference on 13 December 2024, sought an order for costs in respect of the stay application and the telephone conference, which was resisted. Mr Gilchrist submitted his client had been successful in obtaining a stay so should not be paying costs to the unsuccessful party. I am satisfied it is appropriate that there be an order for costs on a 2B basis in favour of the respondents in relation to those steps.

[11]             Since   the   hearing   of   the   application   to   sustain    the   caveat    on    25 November 2024, Ms Golestaneh knew she was going to have to pay the deposit. Payment of the deposit was discussed with counsel at the hearing as a condition of sustaining the caveat. As Mr Napier submitted at the  telephone  conference,  with Ms Golestaneh maintaining her contract was on foot, she was always obliged to pay the deposit.

[12]             The issue is not at what time Ms Golestaneh decided she would not pay the deposit and continue with the contract, rather, it is Ms Golestaneh’s change of mind that means the costs incurred in respect of the stay were wasted.

[13]             A stay is generally regarded as involving an indulgence. Within a week of obtaining the stay, Ms Golestaneh purported cancelled the contract. When it comes to deciding who should bear the costs of the stay, in my view, it is the person whose actions have rendered those costs to be wasted who should meet them.

[14]             Accordingly, there is an order that Ms Golestaneh is to pay to the respondents costs on a 2B basis  in  respect  of  the  stay  and  of  the  telephone  conference  on 13 December 2024.

Associate Judge Lester

Solicitors:

K3 Legal Limited, Auckland Octagon Law, Auckland

Copy to counsel:
A Gilchrist, Barrister, Auckland