McInnis v Campbell

[2020] NZHC 103

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2019-409-000379

[2020] NZHC 103

UNDER

THE LAND TRANSFER ACT 2017

IN THE MATTER OF

An application for removal of a caveat

BETWEEN

CHRISTINE MARY McINNIS

Applicant

AND

MARK IAN CAMPBELL

Respondent

Hearing:

On the papers

Appearances:

R Peters for Applicant

M I Campbell (Respondent) In person

Judgment:

10 February 2020

JUDGMENT OF ASSOCIATE JUDGE LESTER [COSTS]

[1]                The applicants applied to remove a caveat lodged against a property subject to a long-term agreement for sale and purchase with the respondent.

[2]                The application came before me on 12 September 2019 and during the hearing a resolution was reached.

[3]                The applicants applied to remove the respondent’s caveat on the grounds that the respondent failed to settle when called upon to do so. Mr Campbell said the cancellation was invalid as the applicants had not addressed the risk of contamination to the property and issues around fencing.

McINNIS v CAMPBELL [2020] NZHC 103 [10 February 2020]

[4]                Throughout the respondent (save for completion of conveyancing) acted for himself.

[5]                When the matter came before me for hearing I discussed with Mr Campbell that the issue of the contamination of the land was not something covered by the contract. Eventually it was determined that there were no issues with contamination on the property. The respondent’s refusal to settle on this ground was proved to be without foundation.

[6]                The issue of fencing is more factually involved. Whether ultimately that claim was correct I cannot resolve but is something that one would expect to have been met by an amount being withheld on settlement or pursuant to the claims for compensation provision under cl 7 of the Standard Agreement for Sale and Purchase.

[7]                Mr Campbell’s submissions in respect of costs refer to delays by the vendors. Such are not directly relevant to the status of the contract and therefore the caveat. There is a complaint that the vendors lost, gave away or allowed to be stolen, fencing materials belonging to the respondent. Again, those matters were not relevant to the status of the contract.

[8]                The issue of  the  possible  contamination  on  site  is  also  referred  to  by  Mr Campbell but as I have said, again that proved not to be the case.

[9]                The costs sought by the applicant are modest. The applicants do not seek scale costs but two-thirds of the actual sum incurred. The costs sought are $3,000 plus GST of $345.

[10]            Ultimately, I consider in the circumstances it is appropriate that the respondent meet those costs. The primary ground for him not settling was the issue of toxins. Beyond asserting that the site was contaminated the respondent took no steps to establish that. It was not open to the respondent to refuse to settle on the basis of concerns about contamination –  it  was  not  for  the  vendor to  prove the absence  of contamination in the absence of any evidence from the respondent.

[11]            At the end of the day I consider the respondent should bear some responsibility for the fact that the proceedings were necessary. The costs claimed by the applicant, is, as I have said, modest and cannot be criticised. Given the modest amount sought, in all the circumstances there is an order that the defendant pay to the applicant the sum of $3345 together with disbursements as fixed by the registrar.

Associate Judge Lester

Solicitors:
Alpers & Co – Northwest Law Office, Christchurch

Copy to:
Mr M I Campbell, Christchurch