Mawhinney v Registrar-General of Land

[2014] NZHC 1516

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-2358 [2014] NZHC 1516

UNDER THE

Judicature Amendment Act 1872

IN THE MATTER OF

The Land Transfer Act 1952

IN THE MATTER OF

an application for Judicial Review

BETWEEN

PETER WILLIAM MAWHINNEY Applicant

AND

THE REGISTRAR-GENERAL OF LAND

First Respondent

THE ATTORNEY-GENERAL Second Respondent

Hearing:	On the papers
Appearances:	Applicant on own behalf S McKechnie for the Respondents
Judgment:	2 July 2014

JUDGMENT OF BROWN J [As to Costs]

This judgment was delivered by me on 2 July 2014

at 3.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:      Crown Law, Wellington

Copy To:       Applicant

MAWHINNEY v REGISTRAR-GENERAL OF LAND [2014] NZHC 1516 [2 July 2014]

Introduction

[1]      On 7 May 2014 I made an order striking out this proceeding and directed that the  respondents  were  entitled  to  seek  costs.1    The  cost  order  sought  by  the respondents is for increased costs to 130 per cent of 2B scale.  The application is resisted by the applicant who submits that costs should lie where they fall.

Background

[2]      The statement of claim in this proceeding was filed on 7 May 2013.   The relief sought included an order quashing the decision of the first respondent to treat dealing  8993670  as  withdrawn.     On  27  June  2013  the  respondents  filed  an application to strike out the statement of claim.

[3]      On 27  August 2013 the Court of Appeal delivered its decision dismissing Mr Mawhinney’s  appeal  against  the  judgment  of  Associate  Judge  Christiansen. Mr Mawhinney then filed an amended statement of claim on 2 September 2013 and the respondents filed an amended application for an order striking out the amended statement of claim on 2 October 2013.  My judgment of 7 May 2014 addressed that amended application.

[4]      In my judgment  I recognised that the original statement of claim was a collateral attack on the decision of Associate Judge Christiansen and that the Court of Appeal’s judgment appeared to be the impetus for the filing of the amended statement of claim.  Mr Mawhinney denied that the recast claim sought to impeach the conclusion of the Court of Appeal.2

[5]      As my judgment recorded, subsequent to the hearing on 13 November 2013 circumstances changed with the lapse of the Nag’s Head caveat and the focal issue was effectively refined to whether the first respondent had the power to register a transfer “retrospectively”.3     It was that issue which was the prime focus of my

judgment.

1      Mawhinney v Registrar-General of Land [2014] NZHC 933.

2 At [41].

The respondents’ application

[6]      The respondents rely on High Court r 14.6(3)(b) and draw attention to the authorities in Bradbury v Westpac Banking Corp,4 Baker v Waimakuku Whanau Trust Board Inc5 and N-Tech Ltd v Abooth Ltd.6   The respondents submit that the following matters support an award of increased costs:

(a)       The applicant commenced and continued to pursue his claim with the

specific purpose of defeating the Nag’s Head priority interest;

(b)The applicant was explicitly made aware of the deficiencies in the claim and was offered the opportunity to withdraw and avoid liability for costs;

(c)      The claim was pursued in the knowledge that the applicant had unsuccessfully attempted to join the respondents to the Nag’s Head proceeding;7 and

(d)The applicant’s subsequent attempts to amend his claim were largely as  a  result  of  actions  undertaken  by  him  which  extended  the proceeding and put the respondents to unnecessary costs.

[7]      A schedule of costs submitted by the respondents, calculated on a 2B basis, calculated costs as $24,875 with disbursements of $1,258.18 producing a total of

$26,133.18.   The 30 per cent uplift would result in a figure of $33,595.68.   The respondents  acknowledged that  an  award of increased  costs of the level sought would be close to indemnity costs.

The applicant’s response

[8]      Contending that costs should lie where they fall, the applicant’s submissions

are structured under three heads:

4      Bradbury v Westpac Banking Corp [2009] 3 NZLR 400 (CA).

5      Waimakuku Whanau Trust Board Inc HC Napier CIV-2010-441-581, 13 October 2011.

6      N-Tech Ltd v Abooth Ltd [2012] NZHC 1167.

7      Nag’s Head Horse Hotel Ltd v Forest Trustee Ltd [2012] NZHC 2767.

(a)       No collateral attack;

(b)      Amount claimed is excessive; and

(c)       Novelty of subject matter.

[9] The applicant takes issue with the respondent’s contentions at [6] above and contends that, even if costs are awarded, there should be no uplift because none of the factors in High Court r 14.6 apply. Noting that the claim for costs is close to indemnity costs he submits that the amount of the respondents’ actual costs of

$34,084.58 is clearly excessive being more than the average annual wage for only

12.5 days work.

[10]     He further submits that the subject matter of the litigation involved novelty with the result that the outcome was less than predictable and he invokes High Court r 14.2(g), namely that so far as possible the determination of costs should be predictable and expeditious.  His submissions revisit in some detail the substance of the argument addressed in my judgment and conclude with the proposition that, because the novelty resulted in the outcome as regards costs being less than predictable, that costs should lie where they fall.

Decision

[11]     While I was in no doubt that the original statement of claim was a collateral attack on the decision of Associate Judge Christiansen8  the amended statement of claim, which was the subject of the written submissions and hearing, raised an issue of law which was the primary focus of my judgment.   The order striking out the proceeding was resolved on that basis, not on the issue of collateral attack.

[12]     While I recognise that there was a change in circumstances subsequent to the hearing in November 2013, which change was prompted by actions taken by the applicant, the additional work for the respondents, which was occasioned by the preparation  of  the  sequence  of  memoranda  and  the  affidavit  of  Mr  Veneer,  is

reflected in the allowances for steps in the costs schedule submitted by the respondents.

[13]     In all the circumstances I do not consider that it is appropriate in this case to allow the uplift which the respondents seek.

[14]     However nor do I accept the applicant’s contention that, because he considers that the proceeding raised a point of novelty, that costs should lie where they fall. His substantive argument, that documents which were amended, re-executed and re- witnessed remained throughout the same “instrument” which was entitled to registration on an earlier date, was held not to be sustainable.   The respondents having succeeded on that issue then, in accordance with High Court r 14.2(a), they are entitled to be paid costs by the party who failed in his contention.

[15]     Consequently I accept that the respondents are entitled to costs but on a 2B basis with no uplift.   Accordingly the costs and disbursements to which the respondents are entitled are in the sum of $26,133.18 as detailed in the schedule

annexed to the respondents’ submissions.

Brown J