JEB Management Limited v Grubz United Whanau Trust

[2015] NZHC 2070

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-2587 [2015] NZHC 2070

BETWEEN

JEB MANAGEMENT LIMITED

Applicant

AND

GRUBZ UNITED WHANAU TRUST Respondents

Hearing:	On the Papers
Appearances:	D Mitchell for Applicant P Webb for Respondents
Judgment:	28 August 2015

JUDGMENT OF TOOGOOD J [COSTS]

This judgment was delivered by me on 28 August 2015 at 3:00 pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

JEB MANAGEMENT LIMITED v GRUBZ UNITED WHANAU TRUST [2015] NZHC 2070 [28 August 2015]

[1]      On 12 February 2015 I delivered a judgment ordering that a caveat registered against the property at 56 Wymondley Road, Otara, Manukau, shall be removed from the title.1   I directed that the applicant was entitled to costs.2

[2]      The parties could not agree on costs and on 2 March 2015 Mr Mitchell filed on behalf of the applicant a draft costs order calculated on a 2B basis in the sum of

$8,756, plus disbursements inclusive of GST of $624.75.

[3]      Mr Webb filed a memorandum on behalf of the respondents on 19 March

2015, indicating that the respondents had applied for legal aid and were at that time awaiting a final decision on the application.  The applicant’s costs application has been deferred until now while the legal aid decision was awaited.  Mr Webb has now informed the Court that legal aid was refused and that legal assistance to the respondents was provided on a pro bono basis.

[4]      I  commend  Mr  Webb  for  following  the  highest  traditions  of  the  legal profession by undertaking this work without fee for a client with obvious financial problems.  Nevertheless, the respondents elected to resist what I have held to be a justified application by the applicant to remove the caveat, and failed to satisfy the Court that the order should not be made.

[5]      It is an essential principle of the costs regime that an unsuccessful party should pay the costs of a successful party and the respondents must be taken to have known at the time they were served with the application that they would be susceptible to an order for costs if they did not succeed.   I adopt, with respect, the pertinent observations of Lord Neuberger, President of the UK Supreme Court that, “by becoming a party to legal proceedings … a person is brought within a system governed by rules of court, which carry with them the potential for being rendered

legally liable for costs, subject of course to the discretion of the court.”3

[6]      I am informed that sufficient funds are currently held in trust in accordance with the agreement of sale and purchase on the property and that will enable costs to

1      JEB Management Ltd v Grubz United Whanau Trust [2015] NZHC 157.

2 At [48].

3      Re Nortel GmbH [2013] UKSC 52, [2014] AC 209 at [89].

be paid.  I see no reason in this case to depart from the principle that costs should follow the event.

[7]      Mr Webb does not suggest that the costs sought are unreasonable and in the circumstances  I make  an  order  for  costs  in  terms  of  the  draft  order  filed  with Mr Mitchell’s memorandum of 2 March 1015.

……………………………

Toogood J