Lance Edward Baker And Robert Edward Baker and Christopher James McFadden as Trustees of the Re Baker Family Trust and Joan Valda Baker and Christopher James McFadden as Trustees of the JV Baker Family Trust s

[2024] NZHC 2990

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2024-419-153

[2024] NZHC 2990

IN THE MATTER

of an application to sustain a caveat under s143, Land Transfer Act 2007

BETWEEN

LANCE EDWARD BAKER

Applicant

AND

ROBERT EDWARD BAKER and CHRISTOPHER JAMES MCFADDEN as

Trustees of the RE Baker Family Trust and

JOAN VALDA BAKER and CHRISTOPHER JAMES MCFADDEN as

Trustees of the JV Baker Family Trust Respondents

Hearing:

On the papers

Counsel:

G D Stringer for applicant

P J Morgan KC for respondents

Date of judgment:

15 October 2024

JUDGMENT OF JAGOSE J

[Costs]

This judgment was delivered by me on 15 October 2024 at 11.00am.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Counsel/Solicitors:
P J Morgan KC, Hamilton

Cooney Lees Morgan, Tauranga Chatwin Legal Ltd, Hamilton

BAKER v BAKER - Costs [2024] NZHC 2990 [15 October 2024]

[1]                 My 18 September 2024 decision1 — ordering Lance’s caveat against dealings with land registered to his parents, Toby and Joan, not lapse2 — took a preliminary view “costs on Lance’s application may better be determined in conjunction with costs on the substantive proceeding”, but reserved costs if the parties disagreed.3

[2]                 Lance now seeks 2B costs in the amount of $13,446 as consistent with practice and commentary “[a] caveat application is a proceeding in itself” even although it need only to establish an arguable case for the claimed interest.4 No issue is taken with that quantification, but Toby and Joan endorse my preliminary view.

[3]In express comparison with that commentary, the accepted position is:5

[A]  lthough the normal course is that costs in an originating application to sustain a caveat are resolved according to success or failure in that proceeding, costs remain discretionary. Where the caveat is sustained only on condition that the claimed proprietary right must be the subject of resolution by substantive proceedings, the … court may instead order costs be reserved to be resolved when the substantive proceeding itself is determined. Whether that course should be taken may also depend on whether the … claim to right is demonstrably strong (in which case it may be more appropriate to order costs on the application) or weak (in which case costs might better be determined in the round). …

[4]                 My assessment of Lance’s interest was only it qualified to maintain his caveat:6 “[w]hether Lance is able ultimately to establish remains at issue”.7 My assessment thus supports reservation of costs for determination ‘in the round’. I therefore confirm my preliminary view.

[5]                 Costs in this proceeding are reserved for determination in conjunction with costs in the substantive proceeding.

—Jagose J

1      Baker v Baker [2024] NZHC 2699.

2 At [20].

3 At [21].

4      DW McMorland and others Hinde McMorland & Sim Land Law in New Zealand (looseleaf ed, LexisNexis) at [10-020A].

5      Green & McCahill Holdings Ltd v Ara Weiti Development Ltd [2022] NZCA 218 at [87].

6      Baker v Baker, above n 1, at [13].

7 At [19].