Joe & Co Builders Limited v Thompson - [2023] NZHC 1659

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-605

[2023] NZHC 1659

IN THE MATTER of s 143 of the Land Transfer Act 2017

BETWEEN

JOE & CO BUILDERS LIMITED

Applicant

AND

CHARLES RONALD THOMPSON

First respondent

SANDRA MICHELLE LESLEY THOMPSON

Second respondent

Hearing: On the papers

Appearances:

J D Dallas for Applicant

M J Borcoski and C W Martin for Respondents

Judgment:

10 July 2023

JUDGMENT OF ASSOCIATE JUDGE SKELTON

[Costs]

Introduction

[1] In a judgment dated 17 February 2023, Associate Judge Johnston declined to sustain the caveat lodged by the applicant over a property owned by the respondents in Lower Hutt.1

[2]Regarding costs, Associate Judge Johnston stated:

[58] As to costs, the application has been unsuccessful and my preliminary view is that the applicant must pay the respondent’s costs on a 2B basis

1 Joe & Co Builders Ltd v Thompson [2023] NZHC 224.

JOE & CO BUILDERS LIMITED v THOMPSON [2023] NZHC 1659 [10 July 2023]

together with such disbursements as may be fixed by the Registrar. However, as I have not heard counsel in relation to costs I reserve them. If counsel are unable to resolve costs, then they may file memoranda in the usual way.

[3]Counsel have been unable to resolve costs and have filed memoranda.

Relevant legal principles

[4] Costs are ultimately a matter of the court’s discretion, the overall objective being to achieve an outcome that best meets the interest of justice.2 However, that discretion is qualified by the applicable costs rules, contained in pt 14 of the High Court Rules 2016. The primary principle applying to the determination of costs is that costs follow the event – meaning that a party who is unsuccessful pays costs to a party who is successful.3

[5] The Court may order a party to pay increased costs where the party opposing costs has contributed unnecessarily to the time or expense of the proceeding or a step in it.4 Increased costs may be awarded where there is a failure by the paying party to act reasonably.5 An example is failing without reasonable justification to accept an offer of settlement, whether in the form of an offer under r 14.10, or some other offer to settle or dispose of the proceeding.6

[6] The Court may also award the actual costs reasonably incurred by a party (indemnity costs).7 Indemnity costs may be awarded where a party has behaved either badly or very unreasonably.8 For example, indemnity costs may be ordered if the party has acted vexatiously, frivolously, improperly, or unnecessarily in commencing, continuing, or defending a proceeding or step in a proceeding.9

2 High Court Rules 2016, r 14.1; Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [7] and [16]; Glaister v Amalgamated Dairies Ltd [2004] 2 NZLR 606 (CA) at [21]–[24] and [28]; and Mansfield Drycleaners Ltd v Quinny’s Drycleaning (Dentice Drycleaning Upper Hutt Ltd) (2002) 16 PRNZ…

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 Joe & Co Builders Limited v Thompson 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: [2023] NZHC 1659
Decision Date: 10 July 2023

CaseChat Overview and Summary

Joe & Co Builders Limited (the applicant) sought to appeal against the decision of Associate Judge Johnston to decline to sustain a caveat lodged over a property owned by Charles Ronald Thompson and Sandra Michelle Lesley Thompson (the respondents). Associate Judge Johnston declined to sustain the caveat and ordered the applicant to pay the respondents’ costs on a 2B basis. Counsel for the parties were unable to agree on the quantum of costs and filed memoranda. The applicant accepted that it was liable for scale costs on a 2B basis. The respondents sought indemnity costs, or alternatively increased costs, against the applicant and two individuals, Catherine Foot and Michael Kooiman. The respondents also sought an order for a portion of the fees of a registered surveyor engaged by them in relation to the application, and the costs of preparing their memorandum on costs. The applicant opposed indemnity costs or an uplift on costs and opposed an order that Ms Foot and Mr Kooiman were liable for costs. The applicant also opposed the surveyor’s fee as a disbursement. If the Court rejected the indemnity costs or increased costs sought by the respondents, the applicant sought costs on a 2C basis for filing its costs memorandum in response. The Court found that the applicant’s originating application was not a “hopeless case” and that the applicant had not acted vexatiously, frivolously, improperly, or unnecessarily in commencing and continuing the proceeding. The Court did not consider that the issues raised met the high threshold for an award of indemnity costs. The Court also found that the issues raised did not meet the threshold for an award of increased costs. The Court considered the disbursement cost for the surveyor to be allowable. The Court reserved leave to the respondents to apply subsequently and formally for non-party costs against Ms Foot and Mr Kooiman if that became necessary. The Court found that neither party was entitled to costs for preparing their respective costs memoranda. The Court fixed the respondents’ costs and disbursements at $12,272.50 and $2,070 respectively.

Orders