Mawhinney v Nags Head Horse Hotel Limited

[2013] NZHC 369

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV2012-404-003312 [2013] NZHC 369

BETWEEN  PETER WILLIAM MAWHINNEY Plaintiff

ANDNAGS HEAD HORSE HOTEL LIMITED Defendant

Hearing:         By memoranda

Counsel:         P W Mawhinney, plaintiff in person

L O'Gorman/D Broadmore for defendant

Judgment:      28 February 2013

JUDGMENT OF ASSOCIATE JUDGE ABBOTT

This judgment was delivered by me on 28 February 2013 at 5pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:

L O’Gorman/D Broadmore, Buddle Findlay, PO Box 1433, Auckland 1140

And to:

P W Mawhinney C/- Swanson Superette, PO Box 95 157, Swanson

PETER WILLIAM MAWHINNEY V NAGS HEAD HORSE HOTEL LIMITED HC AK CIV 2012-404-003312 [28 February 2013]

[1]      The plaintiff, P W Mawhinney, issued this proceeding in June 2012, seeking an order under s 328(1) of the Property Law Act 2007 granting access over land in Anzac  Valley  Road,  Waitakere  over  which  the  defendant  holds  a  registered mortgage.

[2]      The plaintiff claimed said the order was required because the land over which access was sought was landlocked, and standing on the basis that he was an occupier pursuant to a forestry right and a lease.  He said the defendant’s consent was needed to register an easement over the access land which the owner of that land had agreed to grant.

[3]      The  defendant  took  issue  with  the  plaintiff’s  entitlement  to  bring  this proceeding because he was not owner of the landlocked property, but in any event said that the proceeding was unnecessary because the defendant agreed to provide, and subsequently did, its consent.

[4]      The parties agreed to extension of time for filing of any statement of defence pending delivery of the consent, and after the consent was issued the solicitor for the defendant wrote to the plaintiff to seek confirmation that he would discontinue his claim.  This request was made before the easement was provided (in anticipation of it being provided) and  repeated  after the formal document  was delivered.   The plaintiff refused to discontinue before the easement was registered.

[5]      The defendant, faced with the expiry of timetable for filing of the statement of defence, brought an application to strike out the claim rather than file a statement of defence.  That application came before the Court first on 12 September 2012, at which point it was adjourned to the chambers list on 12 December 2012 to check whether the easement had been registered, thereby obviating any need to hear the application to strike out.

[6]      When the proceeding came back before the Court on 12 December 2012, the plaintiff had neither discontinued the proceeding nor filed notice of opposition to the application.  The plaintiff did not appear at that hearing, and the defendant did not

know  whether  the  easement  had  been  registered.    Counsel  for  the  defendant submitted that it was being prejudiced by the cost of having to continue to appear in Court and invited the Court to strike out the claim on that day.  Rather than do so, the application was adjourned to 25 January 2013, but on the basis that the claim would be struck out unless the plaintiff filed and served notice of opposition by 18 January

2013.  An order was made that the plaintiff pay the defendant wasted costs on the appearance that day.

[7]      The plaintiff filed notice of discontinuance on 18 January 2013.  On receipt of that discontinuance, the defendant filed a memorandum requesting costs consequent upon the discontinuance, apart from the cost order already made on 12

December 2012.  The plaintiff was directed to file a memorandum responding to that claim by 1 February 2013, with a view to costs being determined on the basis of the memoranda. The plaintiff has not filed a memorandum.

[8]      Under r 15.23 of the High Court Rules, a plaintiff who discontinues must pay the costs of the defendant up to and including the discontinuance, unless the Court orders otherwise.

[9]      The defendant submits that it is entitled not only to scale costs, but to an increase on those costs to reflect the fact that the plaintiff’s claim had no prospect of success, as a matter of law, and that delay and expense was caused by the plaintiff pursuing the proceeding regardless of that fact.   Nevertheless, as the plaintiff is bankrupt (he brought the proceeding as a trustee) the defendant accepts that it is uneconomic for it to pursue those issues.  Instead it seeks costs on a 2B basis, plus disbursements.

[10]     There is no reason for the Court to depart from the general proposition under r 15.23 that the plaintiff discontinuing pay the costs of the defendant.

[11]     I am satisfied that the costs sought by the defendant are properly claimable.  I make an order that the plaintiff pay the defendant the sum of $2,786 together with disbursements of $773.30 for steps taken in the proceeding that were not the subject

of the prior cost order (and as set out in the schedule to the defendant’s memorandum

dated 22 January 2013).

Associate Judge Abbott