Harris-Iles v M & E Property Investments 2007 Limited

[2017] NZHC 892

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2016-485-000794 [2017] NZHC 892

UNDER

the Land Transfer Act 1952

IN THE MATTER

of an originating application on notice seeking an order to lodge a second caveat

BETWEEN

ROBYN ANN HARRIS-ILES Applicant

AND

M & E PROPERTY INVESTMENTS

2007 LIMITED First Respondent

MICHAEL ARTHUR ILES Second Respondent

Hearing:	4 May 2017 (Determined on the papers)
Counsel:	D M Fraundorfer for Applicant Second Respondent self-represented
Judgment:	5 May 2017

COSTS JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

[1]      By a judgment dated 29 March 2017 the Court dismissed an application for leave to file a second caveat under s 148 of the Land Transfer Act 1952.  On analysis the Court found that leave was not required as the proposed second caveat did not seek to protect the same interest as a former caveat which had lapsed.  Accordingly the intending caveator, the applicant, could file a proposed second caveat without leave of the Court.

[2]      The case was heard on 23 March 2017 and the judgment issued on 29 March

2017.   On 27 March the respondents filed a memorandum in which they ask for costs.  At paragraph [38] of the judgment the Court records that the issue of costs

HARRIS-ILES v M & E PROPERTY INVESTMENTS 2007 LTD & ILES [2017] NZHC 892 [5 May 2017]

was not fully considered at the hearing.  Leave was given to the applicant to file a memorandum in relation to costs in response.

[3]      I have now considered both memoranda.  This judgment determines costs on the application for leave to file a second caveat.

[4]      Mr Iles and the first respondent initially instructed a solicitor to act on their behalf.  The steps taken in this case by the respondents, with legal representation, are the  filing  of  a  notice  of  opposition,  the  filing  of  one  memorandum,  and  the attendance of counsel at one case management conference.  Counsel for the applicant notes that in Schedule 3 of the High Court Rules there is a time allocation of 2 days for the preparation of a notice of opposition and supporting affidavits, combined, where costs are assessed on a 2B basis.   He says that the respondents were not represented  in  relation  to  the  affidavit,  only  the  notice.    He  suggests  that  the allocation of costs should be halved.  I consider that a reasonable suggestion.  As a result I accept counsel’s view that any award of costs would be for 1.7 days in a total sum of $3,791.

[5]      So far as any further attendances are concerned, the respondents are not entitled to costs as they have represented themselves.

[6]      The question of whether an order granting leave to file a second caveat was required from the Court was raised with counsel and Mr Iles at the hearing.1    This did not result in the applicant withdrawing the application.   Thus an opportunity went by for the case to be resolved by consent on the basis on which it was finally resolved by the Court.

[7]      I do not think that it can be said in any sense that the applicant has achieved what she set out to achieve.  In my opinion the respondent is entitled to an award of costs.

[8]      Counsel  for the applicant  says  that  any award  of costs  in  favour of  the respondent should be reduced on account of steps taken by the respondent during the

1      Harris-Iles v M & E Property Investment 2007 Limited [2017] NZHC 587 at [28].

course of the proceeding.  Although the High Court Rules contain scales for costs which are intended, when read in conjunction with the relevant rules, to give a degree of certainty or predictability in the assessment of likely costs, the Court has an overriding discretion in relation to costs, preserved by r 14.1.  Rule 14.7 provides that the Court may reduce an award of costs in certain circumstances.  It would be pursuant to the discretion in r 14.1, and to r 14.7(f) that any reduction in costs would be directed.

[9]      Counsel  for  the  applicant  points  to  an  unnecessary  application  by  the respondent  for  an  order  appointing  counsel  for  the  first  respondent,  which predictably was rejected by the Court, and his filing of affidavits which counsel describes as scandalous which put the applicant to the cost of seeking that they be withdrawn.  This necessitated the preparation and filing of a memorandum and of submissions on this point.   Counsel also refers to what he sees as the second respondent’s refusal to accept a settlement offer which would have led to the same result had it been accepted, and a change of mind by the second respondent during the hearing in relation to the sale of a property known as Martin Square.   Finally counsel notes that grounds given in opposition to the application were entirely different to the reasons that the Court gave for its decision.

[10]     I have weighed up the respective positions of the parties and taken account of all the material put before me.  In my opinion there are sound reasons to reduce the costs which would otherwise be payable on account of the matters referred to by counsel.  As I have noted, without reduction the costs payable would be $3,791.  I direct that the applicant will pay to the respondent the sum of $2,000 by way of costs together with any disbursement that he may have incurred, which is fixed by the Registrar.

Other documents

[11]     Since   the   judgment   was   issued   the   second   respondent   has   filed   a memorandum of the respondents dated 12 April, a “proposal for an order of discontinuance” dated 14 April, and a document titled “Regarding Minute of Associate Judge Christiansen” dated 4 April.   I have reviewed these documents.

They appear to contain the second respondent’s present views in relation to how all issues between the parties might be resolved.   They are not relevant either to the application in relation to the caveat, which has been finalised, to the costs issue which is resolved by this judgment, or to the interlocutory injunction granted by the Court on 5 December 2016.  Accordingly, I disregard these documents as they have no bearing on any proceeding which is currently before the Court.   It is for the applicant to now take such steps as she wishes to take to resolve any further issues which  need  the  intervention  of  the  Court.     I  direct  the  applicant  to  file  a memorandum setting out how she intends to proceed, within 15 working days, and to

serve that on the respondents.

J G Matthews

Associate Judge

Solicitors:

Holland Beckett, Tauranga for Applicant