Keesing v Coop

[2022] NZHC 1569

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-2

[2022] NZHC 1569

UNDER

the Trusts Act 2019, Land Transfer Act 2017, inherent jurisdiction of the High Court, and

all amendments thereto

IN THE MATTER

of FRANK POOL FAMILY TRUST, of

Wellsford, North Auckland

AND IN THE MATTER

of an application to prevent lapse of caveat on land title NA126C/45, legal description: fee simple – 1/3 share – Lot 12 – Deposited Plan 85113 – leasehold – flat 3 – Deposited Plan 197086 (29B Wi Apo Place, Wellsford, North Auckland)

BETWEEN

MICHAEL DOUGLAS KEESING as

protector and trustee of the FRANK POOL FAMILY TRUST

Plaintiff

AND

BARBARA ANNE COOP

First Defendant

Continued …

Hearing:

On the papers

Appearances:

Plaintiff in person

J Armstrong for the Defendants

Judgment:

4 July 2022

JUDGMENT OF GAULT J

(Costs)

This judgment was delivered by me on 4 July 2022 at 3:00 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

KEESING v COOP [2022] NZHC 1569 [4 July 2022]

Continued …

AND

CRAIG PETER DAVIE-MARTIN

Second Defendant

PETER ATHOL HONOUR

Third Defendant

[1]                   Following my judgment dated 31 March 2022 dismissing Mr Keesing’s caveat,1 the defendants seek costs on a 2B basis.

[2]                   Mr Keesing submits that he has always acted in good faith, that he only issued proceedings as a last resort when the defendants failed to respond and that costs should lie where they fall.

[3]In my earlier judgment, I said:

[45] The defendants are entitled to costs, which ordinarily follow the event including in a caveat proceeding irrespective of the separate and ongoing substantive proceeding.² If costs cannot be agreed, I will receive memoranda not exceeding three pages within 15 working days and determine the costs on the papers.

[4]                   Irrespective of Mr Keesing’s intentions, the general principle that costs follow the event should apply in this caveat proceeding. Mr Keesing lodged a caveat without a caveatable interest. Costs on a 2B basis are appropriate given the issues and urgency involved, as also indicated in my earlier judgment.

[5]                   Caveat applications are ordinarily brought by way of originating application whereas Mr Keesing filed a statement of claim and an interlocutory application.   The defendants have claimed costs on that basis, which is to Mr Keesing’s advantage.

Result

[6]                   The defendants are entitled to 2B costs of $7,648 plus disbursements of $160, totalling $7,808.

Gault J

1      Keesing v Coop [2022] NZHC 631.

2      PHI Construction Ltd v Thomson [2021] NZHC 706 at [4].

Parties / Solicitors:

The Plaintiff

Mr J Armstrong and Ms J Daley, Armstrong Murray, Auckland