Hemmingson v Rod - [2015] NZHC 2021

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2014-485-9532 [2015] NZHC 2021

UNDER The Land Transfer Act 1952

IN THE MATTER OF

an application to prevent a caveat lapsing

BETWEEN

ROBERT NEIL HEMMINGSON Plaintiff

AND

STEVEN ROD AND THE CLANARD PROPERTY TRUST COMPANY LIMITED

Defendants

On the Papers

Counsel:

G Cruden for Mr and Mrs Davis, non-parties against whom discovery order was sought

J Mahuta-Coyle for the first-named defendant

Judgment:

26 August 2015

JUDGMENT OF ASSOCIATE JUDGE SMITH

[1] This is an application for costs by Mr and Mrs Davis, non-parties who responded to a non-party discovery application which was withdrawn when the application was called on 31 March 2015.

[2] When the non-party discovery application was withdrawn at the hearing, I directed that Mr and Mrs Davis would be entitled to reasonable costs on a solicitor/client basis.1 In directing that reasonable solicitor/client costs could be sought, however, I indicated that I had some questions as to the extent to which the response by Mr and Mrs Davis to the discovery application may have been more
than was necessary in the circumstances. I directed that Mr and Mrs Davis were to

1 Under r 14.6(4)(d), the Court may make an indemnity costs order if the person in whose favour the order of costs is made is not a party to the proceeding and has acted reasonably in relation to it.

ROBERT NEIL HEMMINGSON v STEVEN ROD AND THE CLANARD PROPERTY TRUST COMPANY LIMITED [2015] NZHC 2021 [26 August 2015]

file and serve a memorandum setting out their claim for costs and expenses incurred to 31 March 2015 in responding to the non-party discovery application.

[3] Mr and Mrs Davis subsequently filed a memorandum setting out a claim for costs and expenses totalling $26,332.35 (including GST and disbursements). A memorandum opposing those costs was subsequently filed by the first-named defendant Mr Rod, who had made the non-party discovery application.

Background

[4] The background to the proceeding is set out in two judgments I gave on

30 April 2014 and 13 April 2015. It is not necessary to repeat all that was said in those judgments on this non-party costs application. I note simply that the proceeding was concerned with an application by Mr Hemmingson to establish an interest in the land on which the Foxton Hotel is located. Until 19 July 2011
Mr Hemmingson and Cheryl Hemmingson were the registered proprietors of the land, which they held as trustees of a family trust or trusts associated with Mr Hemmingson. There were then two mortgages on the title, a first mortgage to Avanti Finance Ltd (Avanti) and a second mortgage to Mr and Mrs Davis.

[5] Mr Hemmingson ran into financial difficulties, and Avanti put in train mortgagee sale proceedings. The defendants, Mr Rod and the Clanard Property Trust Company Ltd, purchased the land from Avanti as mortgagee on 19 July 2011 for $275,000.

[6] Mr and Mrs Davis had held a second mortgage over the land, securing an advance of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hemmingson v Rod

Details

AGLC: Hemmingson v Rod [2015] NZHC 2021
Case: [2015] NZHC 2021
Decision Date: 26 August 2015

CaseChat Overview and Summary

In Hemmingson v Rod, Mr and Mrs Davis sought costs incurred in responding to an application for non-party discovery made by Mr Rod. The application was withdrawn when called on, but the Court had directed that Mr and Mrs Davis would be entitled to reasonable costs incurred in responding to the application. The Court had indicated it had some questions about whether Mr and Mrs Davis' response to the application had been more than was necessary. Mr and Mrs Davis filed a memorandum setting out a claim for costs and expenses totalling $26,332.35 (including GST and disbursements). The Court held that there was substantial overkill in Mr and Mrs Davis' response to the non-party discovery application and that it was not necessary for Mr and Mrs Davis to expend the time and effort they did. The Court held that it was appropriate to increase the costs which would otherwise have been awarded by the sum of $2,500 to reflect the urgency with which Mr and Mrs Davis' advisors were required to respond in the early stages. The Court awarded the sum of $9,600, plus disbursements in the total sum of $667.35.

Orders