Matchitt v Executors of the Estate of Te Momo

[2013] NZHC 372

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CIV2012-416-000183 [2013] NZHC 372

BETWEEN  STANLEY AND CHERIE MATCHITT Plaintiffs

ANDTHE EXECUTORS OF THE ESTATE OF RAHARUHI TE MOMO

Defendants

Hearing:         By memoranda

Counsel:         A J Bendall for plaintiffs

B Tupara for defendants

Judgment:      1 March 2013

JUDGMENT OF ASSOCIATE JUDGE ABBOTT

This judgment was delivered by me on 1 March 2013 at 3pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:

A J Bendall, Burnard Bull & Co, PO Box 946, Gisborne

B Tupara, Kahurangi Law, 11B De Lautour Road, Turanga (Gisborne) 4010

STANLEY AND CHERIE MATCHITT V THE EXECUTORS OF THE ESTATE OF RAHARUHI TE MOMO HC GIS CIV 2012-416-000183 [1 March 2013]

[1]      On 7 February 2013 I made an order, on the plaintiffs’ application, granting them leave to enforce judgments against the late Raharuhi Te Momo by an order for sale of 2 Baty Street, Gisborne.

[2]      The defendants are the executors of the estate of the late Raharuhi Te Momo, and currently the registered proprietors of 2 Baty Street.

[3]      The plaintiffs have sought costs on the proceeding, on the basis that they were successful.  The defendants asked to be heard on that issue.  Both parties have filed memoranda.

Background

[4]      The plaintiffs obtained two judgments against Raharuhi Te Momo during her lifetime. They registered charging orders against her land at 2 Baty Street.  Raharuhi Te Momo had not paid the judgment sums prior to her death.  They remain debts of the estate.

[5]      The defendants opposed the order for sale on the grounds that they had not been aware of the judgment giving rise to the second of the charging orders (in time), and wanted the plaintiffs to justify their entitlement to the judgment.  They have now opposed the plaintiffs’ claim for scale 2B costs on the same basis. They say that they would have been remiss in their duty to the estate and the beneficiaries if they had not opposed the proceeding until they had further information about the basis upon which that judgment was obtained because of the significance of the debt to the estate and a concern that the plaintiffs had not adequately proved the judgment (it was entered by default).   They rely on the exercise of the Court’s discretion in relation to costs.

[6]      The application for order for sale was made on the basis of a judgment that has not been challenged or stayed.  The plaintiffs were entitled to seek enforcement

of that judgment by a sale order.[1]   The plaintiffs are entitled to costs and expenses of issuing and effecting an enforcement process.[2]

[1] R 17.3(c) High Court Rules.

[2] R 17.25.

[7]      The defendants have, at all material times, been aware that the application for sale was to obtain payment of judgment debts.  They had opportunity to settle the debts (the parties had discussions before the application was filed) and opportunity to make independent enquiry (through the Court if information was not forthcoming from the plaintiffs) as to the claim giving rise to the judgment, and to apply to set the judgment aside if they had a continuing concern with it.  The defendants ought to have been aware that the plaintiffs were exercising a legal right, and that the grounds advanced in opposition did not provide a sufficient basis for defence, particularly in the absence of any attempt to set the judgments aside.

[8]      The plaintiffs have sought increased costs on the basis that the defendants opposed  the application  for the sale order  without  proper  grounds,  and  thereby caused the plaintiffs to incur unnecessary expense (reviewing the material in opposition, and having counsel have to prepare for and attend the hearing rather than having the orders made by consent).   The plaintiffs also had to prepare a memorandum in response to the opposition on costs.  They seek an uplift on scale costs in accordance with the principles in Holdfast New Zealand Ltd v Selleys Pty

Ltd.[3]     However, they have not given the Court any basis on which to assess an

appropriate level of uplift (by reference to actual costs involved in the steps that they should not have had to incur, or even the time involved).  In the circumstances there is no basis on which I can exercise that discretion.

Result

[3] Holdfast New Zealand Ltd v Selleys Pty Ltd (2005) 17 PRNZ 897 (CA).

[9]      The defendants are to pay the plaintiffs costs on a scale 2B basis in relation to all steps taken in respect of the application for leave to issue a sale order, including

their memorandum responding to the defendants’ opposition on costs.

Associate Judge Abbott