Ivanovska v Johnston

[2020] NZHC 457

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2019-409-714

[2020] NZHC 457

UNDER

Part 19 of the High Court Rules 2016 and s 43 of the Land Transfer Act 2007

IN THE MATTER

of an application that caveat 11558888.1 not lapse

BETWEEN

OKSANA IVANOVSKA

Applicant

AND

CHRISTOPHER MICHAEL JOHNSTON

Respondent

Hearing:

On the papers

Counsel:

J D Lucas for Applicant

K L de Roo for Respondent

Judgment:

10 March 2020

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 10 March 2020 at 12.30pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 10 March 2020

IVANOVSKA v JOHNSTON [2020] NZHC 457 [10 March 2020]

[1]This proceeding involved an application to sustain a notice of claim.

[2]        The parties were in a de facto relationship. The applicant lodged a notice of claim under s 42(2) of the Property (Relationships) Act 1976 on 23 September 2019.

[3]        The caveat concerns a property, Flat 1/33 Oldwood Street, Christchurch which was purchased using the respondent’s funds and the loan is in his name.

[4]        On 12 December 2019, the applicant received notice that an application had been made by the respondent to lapse the notice of claim.

[5]        The applicant says that she contributed $5,000 towards the deposit for the property and  a half-share  towards  the  loan  repayments  and  improvements  on  the property. She says that during the time the applicant and respondent lived in the property they undertook extensive renovations, the costs of which were shared between them.

[6]        This proceeding was commenced and an interim order sustaining the notice of claim made on 20 December 2019.   The proceeding was listed for first call on         4 February 2020 but before that call the respondent agreed that the interim order could be made final. Costs were reserved.

[7]        The parties have been unable to agree costs and the applicant seeks costs on  a 2B basis. The application is made on the grounds that the applicant had no option but to bring the application and was ultimately successful, thus costs should follow the event.

[8]        The applicant says that her solicitor wrote to the respondent on 4 October 2019 advising that the notice of claim was being lodged and proposing a resolution. It was responded to by the respondent’s solicitors on 22 October 2019. That letter concluded:

Chris instructs us that if he is required to take any action (for instance, to apply to remove the Notice of Claim), he will make a costs application against [the applicant].

[9]        I do not read the respondent’s submissions as saying that costs should not follow the event, but rather that costs should be on a 1A rather than a 2B basis. Respondent’s counsel goes so far as to submit that a 2B award would be significantly greater than the actual costs incurred.

[10]      Applicant’s counsel will be aware of r 14.2(1)(f) of the High Court Rules 2016 that scale costs cannot exceed actual costs. Given applicant’s counsel has sought scale costs, I am treating that as confirmation by the applicant’s counsel that actual costs exceed scale. If that is not the case, then the applicant’s counsel is to advise accordingly.

[11]      Applicant’s counsel was, at the busiest time of year, required to respond to the application to lapse. I see no reasons why costs should not follow the event on a 2B basis.

[12]      The respondent says the application could have been commenced in the District Court and refers to s 42(3)(a) of the Property (Relationships) Act:

42        Notice of interest against title

(1)A claim to an interest, pursuant to this Act, in any land subject to the Land Transfer Act 2017 shall be deemed to be a registrable interest for the purposes of that Act.

(2)Notice of a claim under subsection (1) shall be effected by lodging a duly completed notice in the prescribed form with the Registrar-General of Land.

(3)Every notice so lodged shall have effect as if it were a caveat lodged pursuant to section 138 of the Land Transfer Act 2017 and the provisions of that Act, except section 141, shall apply subject to the following modifications:

(a)any application under section 142 or 143 of that Act in respect of any notice under this section may be made to the Family Court or the District Court or the High Court; and

(b)an order under section 146 of that Act authorising the receipt of a second notice under this section may be made by the Family Court or the District Court or the High Court.

[13]      Accordingly, the respondent says District Court costs should have been awarded.

[14]      That is something of a counsel of perfection. The respondent placed the applicant in the position where an interim order to sustain a notice of claim had to be obtained under urgency and that the interim order was issued on 20 December 2019 says something about the pressure that put on the applicant and her legal team.

[15]      Given the pressures on the District Court at that time of year, it was understandable that the application was made to this Court. I do not adjust the costs because of the possibility that the matter could have been advanced in the District Court. The applicant is given the option under s 42(3)(a) of the Property (Relationship) Act. In the circumstances, it was reasonable to bring the application in this Court.

Associate Judge Lester

Solicitors:

Hill Lee & Scott, Christchurch

Brandts-Giesen McCormick, Rangiora

Copy to counsel:

J Lucas, Barrister, Christchurch