MacFarlane v Perpetual Trust Limited

[2019] NZHC 727

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-143

[2019] NZHC 727

BETWEEN

JAMES JOHN DUNCAN MACFARLANE

Applicant

AND

PERPETUAL TRUST LIMITED

Respondent

CIV-2018-409-158

BETWEEN

PERPETUAL TRUST LIMITED
Applicant

AND

JAMES JOHN DUNCAN MACFARLANE

Respondent

CIV-2018-409-159

BETWEEN

PERPETUAL TRUST LIMITED
Plaintiff

AND

JAMES JOHN DUNCAN MACFARLANE

Defendant

Counsel:	J Edwards and J Suyker for Perpetual Trust Limited in all three proceedings
Judgment:	8 April 2019

COSTS JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[On the papers]

[1]                  These three proceedings were heard together in Christchurch on 30 April and 1 May 2018. I issued a judgment on 15 May 2018. I dismissed Mr Macfarlane’s application for an order sustaining a caveat registered over a property owned by

MACFARLANE v PERPETUAL TRUST LIMITED [2019] NZHC 727 [8 April 2019]

Perpetual Trust Ltd, ordered that the caveat lapse as sought by Perpetual and entered summary judgment for Perpetual in its proceedings seeking vacant possession of the property. Mr Macfarlane appealed to the Court of Appeal. His appeal was dismissed. Mr Macfarlane then applied for leave to apply to the Supreme Court. His application was declined.

[2]                  Now Perpetual seeks costs. It seeks only scale costs on a 2B basis. The governing principles are well settled. As a rule, costs follow the event, that is to say, the successful party is entitled to an award of costs, and the award is determined by reference to the scales contained in the High Court Rules. Thus, prima facie at least, Perpetual is entitled to its costs.

[3]                  Mr Macfarlane has filed a memorandum in response to Perpetual’s application for a costs order. He says that the case may not be over. He says that he is proposing to apply to the Supreme Court to recall its judgment declining him leave to appeal to that Court. Apparently, the basis for this is that Perpetual, through its solicitors, has dealt inappropriately with chattels in the property. On the basis of the material set out in his memorandum, I am quite unable to see any proper foundation for an application for a recall.

[4]                  Perpetual will have its costs which I fix at $26,537.00 together with disbursements totalling $4,349.46. These are the figures supplied by counsel for Perpetual. Mr Macfarlane does not question them in his memorandum. I have checked the figures against the schedules in the Rules and they appear to me to be correct.

Associate Judge Johnston

Solicitors:

Russell McVeagh, Auckland for Perpetual Trust Limited in all three proceedings