Niven v 8 Hereford Limited - [2021] NZHC 688

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-2382

[2021] NZHC 688

UNDER Rule 19.2 of the High Court rules and s 142 of the Land Transfer Act 2017

IN THE MATTER

of an application to remove a caveat

BETWEEN

ALISTAIR GRANT NIVEN

Applicant

AND

8 HEREFORD LIMITED

Respondent

Hearing: On the papers

Appearances:

I J Stephenson for the Applicant C A Murphy for the Respondent

Judgment:

31 March 2021

JUDGMENT OF GAULT J

(Costs)

This judgment was delivered by me on 31 March 2021 at 1:00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:
Mr I J Stephenson, lane Neave, Auckland Ms C A Murphy, Barrister, Auckland
Mr G Simon (respondent’s instructing solicitor), Gregory Simon Law, Auckland

NIVEN v 8 HEREFORD LTD [2021] NZHC 688 [31 March 2021]

[1] This originating application to remove a caveat was resolved except in relation to costs. The applicant sought timetable directions for the filing of memoranda as to costs and for costs to be determined on the papers.

[2] The applicant says that the respondent and/or its agent lodged the caveat without reasonable cause and therefore improperly. While the respondent later removed the caveat, the applicant was put to the unnecessary cost of the application to remove and seeks actual costs incurred or, in the alternative, 2B scale costs.

[3] The respondent says that costs have already been decided between the parties pursuant to a settlement agreement and, alternatively, that costs should lie where they fall.

Discussion

[4] Where a dispute arises between the parties as to whether costs have been agreed, it is appropriate to address first whether there is an agreement. In some circumstances that may require affidavit evidence and possibly a hearing. However, in this case, the issue of an agreement as to costs only arose in the respondent’s memorandum, which attached a settlement agreement, and the applicant elected not to file a reply. I can therefore also deal with this issue on the papers.

[5] The settlement agreement was signed on the same day that the originating application was served. The issue is whether the settlement agreement relates to this proceeding. In the absence of any argument from the applicant, I accept the respondent’s submission that the signed settlement agreement precludes a claim for costs. Although the top of the document cites only the substantive District Court proceeding number, the agreement refers to the discharge of the caveat upon payment in clause 5 and I consider that the combination of clauses 4 and 6 mean that the parties agreed to settle the proceedings plural, that is both the District Court proceeding and this proceeding, with no issue as to costs.

[6] Even if a claim for costs were not precluded by the settlement agreement, I do not consider that indemnity costs should be awarded, for the following reasons.

[7] As the Court of Appeal said in Bradbury v Westpac…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NZHC 688
Decision Date: 31 March 2021

CaseChat Overview and Summary

The case of Niven v 8 Hereford Limited involved an application to remove a caveat filed by Alistair Grant Niven, the applicant, against 8 Hereford Limited, the respondent. The matter was heard on the papers, with appearances by I J Stephenson for the applicant and C A Murphy for the respondent. The application was resolved except in relation to the issue of costs. The applicant claimed that the respondent, or its agent, lodged the caveat without reasonable cause and therefore improperly, seeking actual or, in the alternative, 2B scale costs. The respondent argued that costs had already been decided between the parties pursuant to a settlement agreement or, alternatively, that costs should lie where they fall.

The legal issues in this case revolved around whether the settlement agreement precluded a claim for costs and, if not, whether indemnity costs should be awarded. The settlement agreement was signed on the same day the originating application was served, and it was argued that the agreement referred to the discharge of the caveat upon payment, and the parties agreed to settle the proceedings plural, including this proceeding, with no issue as to costs.

The Court found that the signed settlement agreement precluded a claim for costs, and that the combination of clauses 4 and 6 in the agreement meant that the parties agreed to settle the proceedings plural, including this proceeding, with no issue as to costs. Even if a claim for costs were not precluded by the settlement agreement, the Court did not consider that indemnity costs should be awarded, as the misconduct must be flagrant to justify such an order, and the alleged misconduct in this case was not conduct in the proceeding, but rather before it commenced.

In conclusion, there was no order as to costs. The Court determined that the settlement agreement precluded a claim for costs and that indemnity costs were not warranted in this case.

Orders