Land Trust Limited v Wam Property Limited

[2020] NZHC 1536

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-1014

[2020] NZHC 1536

BETWEEN

LAND TRUST LIMITED

First Plaintiff

STEPHEN ROBERT KELLY AND CITILOFTS (TRUSTEE) LIMITED
Second Plaintiffs

AND

WAM PROPERTY LIMITED

Defendant

Hearing:	On the papers
Counsel:	M G Locke for Plaintiffs D K Wilson for Defendant
Judgment:	7 July 2020

COSTS JUDGMENT OF WHATA J

This judgment was delivered by me on 7 July 2020 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:           Ponsonby Law, Auckland

Whaley Garnett, Auckland

LAND TRUST LIMITED v WAM PROPERTY LIMITED [2020] NZHC 1536 [7 July 2020]

[1]    In my judgment of 12 September 2019, I made declarations that an agreement between the parties was validly cancelled by WAM Property Limited (WPL) and that it is entitled to forfeit the deposit of $600,000. That was a judgment by default. Subsequently, the Court of Appeal, in a decision of 8 October 2019, allowed an appeal against the decision of Associate Judge Bell purporting to strike out Land Trust Limited’s (LTL) claim against WPL. The effect of that judgment was that my orders were quashed, provided, however, that LTL paid security of costs to the Registrar of the High Court in the sum of $35,000. The Court of Appeal recorded that if these conditions were breached, LTL’s claim would be dismissed, and my orders reinstated. I also have a Minute (No 2) of Brown J of the Court of Appeal recording that the requirement to pay security was not complied with.

[2]    In a memorandum of counsel for the defendant, dated 15 June 2020, Mr Wilson advised that the defendant is not going to pursue a damages claim. However, they seek costs in this proceeding on a 2B basis. In total, that comes to $32,026.

[3]    Mr Locke, for the plaintiffs, has filed a submission. It records the plaintiffs do not offer any submissions as to costs or in relation to any matter at this time.

[4]    There being no challenge to the application for costs, I am satisfied that the order for costs now sought is appropriate. I note, for completeness, that I accept the submission made on behalf of WPL that it would have had to effectively prepare for an impending trial and so costs in relation to that preparation are appropriate.

[5]There shall be an order accordingly.