Hinds v Song

[2023] NZHC 544

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-001289

[2023] NZHC 544

UNDER

Land Transfer Act 2017, s 143

IN THE MATTER OF

An originating application to lodge a second caveat

BETWEEN

JAMES DANIEL HINDS

Applicant

AND

XIULING SONG

First Respondent

XIULING TRUSTEE LIMITED

Second Respondent

Counsel:	A C M Fisher KC and S M Wilson for Applicant D A T Chambers KC and D Oh for Respondents
Judgment:	17 March 2023

JUDGMENT OF ANDREW J

[Costs]

This judgment was delivered by Justice Andrew on 17 March 2023 at 3.00 pm

pursuant to r 11.5 of the High Court Rules 2016 Registrar / Deputy Registrar

Date …………………………

HINDS v SONG [2023] NZHC 544 [17 March 2023]

Introduction

[1]                 In my judgment of 17 November 2022,1 I granted Mr Hinds’ application to lodge a second caveat under s 146 of the Land Transfer Act 2017.

[2]                 The parties have been unable to agree on costs. This judgment contains my decision on costs.

Discussion

[3]The general approach is, of course, that costs should follow the event.2 Rule

14.1 of the High Court Rules 2016 confers a wide discretion generally on the Court in relation to costs.

[4]                 I reject the submission of the respondents that costs should lie where they fall because in granting the relief sought, Mr Hinds was essentially granted an indulgence. The said indulgence is the accepted position that the need for a second caveat arose from administrative errors and oversight by the relevant solicitors.3

[5]                 The proceedings involved a genuine contest on the issue of a reasonably arguable case for a constructive trust and Mr Hinds was successful in relation to that key issue. I find that costs should follow the event and that the respondents should pay costs to Mr Hinds on a 2B basis.

[6]                 I agree with the submissions of the respondents on the issue of the applicant’s incorrect calculation of 2B costs and on the disputed disbursements.

[7]I find that the respondents should pay costs to Mr Hinds in the total sum of

$12,702 as calculated in the revised schedule attached to the respondents’ submissions dated 9 December 2022. It is for the applicant to resolve the filing fee issue with the Registry.

1      Hinds v Song [2022] NZHC 3017.

2      High Court Rules 2016, r 14.2(1)(a).

3      The respondent relies on Kaur v Minister of Immigration [2018] NZHC 138 at [38].

Result

[8]                 I order that the respondents are to pay costs to Mr Hinds (on a 2B basis) in the sum of $11,472 together with disbursements of $1,230 (total sum of $12,702).

Andrew J