Jaundzems v Clapshaw - [2012] NZHC 3239

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2011-404-008049 [2012] NZHC 3239

BETWEEN MADALINE JAUNDZEMS AND PETER TIMOTHY GOOSEV
Plaintiffs

ANDDAMON EDGAR CLAPSHAW First Defendant

ANDEDGAR WILLIAM CLAPSHAW Second Defendant

ANDMIDDLE PAKIRI BEACH FARMS LTD Third Defendant

Hearing: On the papers

Appearances: Plaintiffs in person
J Foley for first and second defendants

Judgment: 3 December 2012

JUDGMENT OF ASSOCIATE JUDGE ABBOTT

This judgment was delivered by me on 3 December 2012 at 4.30pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:
M Jaundzems & P T Goosev (in person), 707 Wisconsin Street, San Francisco CA 94107, USA

staff@pakiribeach.com

J Foley, Foley & Hughes, PO Box 6829, Auckland 1141 james.foley@appold.co.nz

JAUNDZEMS & ANOR V CLAPSHAW & ORS HC AK CIV 2011-404-008049 [3 December 2012]

[1] This judgment is given in respect of a dispute over costs following discontinuance.

[2] The plaintiffs filed this proceeding on 14 December 2011 seeking (amongst other remedies) an order that a single share in Middle Pakiri Beach Farms Limited (the third defendant) be transferred to them. The second defendant transferred that share on 14 February 2012. Consequently, the plaintiffs filed a notice of discontinuance, but reserved a claim for costs.

[3] The plaintiffs have applied for the costs of issuing the proceeding, for their attendance at a case management conference on 3 April 2012, and for preparing and filing a memorandum in respect of costs. They claim costs in accordance with the High Court Rules, on a scale 2B basis. They contend that they are entitled to these costs because the defendants have conceded to their demand for transfer of the share.

[4] The defendants oppose the application on the basis that the proceeding was commenced unreasonably. They say that they transferred the share simply to avoid the costs that otherwise would have been incurred in the proceeding, and having regard to the low value of the disputed shares. The defendants say that costs ought to lie where they fall.

[5] I have come to the view that the first and second defendants’ contention that costs should lie where they fall is the appropriate one in the circumstances of this case. As the parties have presented extensive evidence and submissions on their respective positions, I will set out the reasons for coming to this view.

Background

History of Middle Pakiri Beach Farms Ltd

[6] Middle Pakiri Beach Farms Ltd (MPBF) was incorporated on 21 May 1971 to acquire a coastal property at Pakiri Beach. 16,000 shares were issued in four blocks of 4,000 shares. Each set of 4,000 shares had attached to it an occupational

lease to approximately a quarter of the property, and any sale of the shares had to be accompanied by a sale of the related lease (and vice versa).

[7] The occupational leases were issued for a period of 20 years or less, with no right of renewal, to avoid triggering any requirement for subdivision consent for the property. Renewal of the leases, therefore, was…

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.

Keep reading for free

Create a free CaseChat account to read Jaundzems v Clapshaw and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] NZHC 3239
Decision Date: 3 December 2012

CaseChat Overview and Summary

The High Court of New Zealand was asked to decide on a dispute over costs following the discontinuance of a proceeding brought by the plaintiffs, Madaline Jaundzems and Peter Timothy Goose, against Damon Edgar Clapshaw, Edgar William Clapshaw, and Middle Pakiri Beach Farms Ltd. The plaintiffs had sought an order for the transfer of a single share in Middle Pakiri Beach Farms Ltd, which was eventually transferred to them. The court was required to determine whether the plaintiffs were entitled to costs of issuing the proceeding, their attendance at a case management conference, and for preparing and filing a memorandum in respect of costs.

The court held that the defendants’ contention that costs should lie where they fall was the appropriate one in the circumstances of this case. The court found that although the plaintiffs had an arguable claim, the defendants acted reasonably in defending the proceeding, and it was reasonable for them to transfer the share rather than face the significant costs of defending a High Court proceeding. The court balanced the respective positions and took into account that the defendants did not seek costs. It concluded that the appropriate outcome was that the costs should lie where they fall.

The court ordered that costs should lie where they fall. This outcome is based on the court's assessment that both parties acted reasonably in bringing and defending the proceeding, and that the plaintiffs' ultimate achievement of their goal did not necessarily justify an award of costs in their favour.

Orders