Norsand Limited v The Whangarei District Council HC Whangarei CIV 2008-488-231

[2008] NZHC 2574

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV 2008-488-231

UNDER  The Land Transfer Act 1952, s 148

IN THE MATTER OF     An Application for an Order that a caveat not lapse

BETWEEN  NORSAND LIMITED Plaintiff

ANDTHE WHANGAREI DISTRICT COUNCIL

Defendant

Hearing:         On the Papers

Appearances: R Bowden for Plaintiff

G J Mathias for Defendant

Judgment:      17 September 2008 at 4 pm

JUDGMENT OF ASSOCIATE JUDGE ROBINSON (On the Papers)

This judgment was delivered by me on 17 September 2008 at 4 pm, Pursuant to Rule 540(4) of the High Court Rules

Registrar/Deputy Registrar

Date……

Solicitors:           Thomson Wilson, PO Box 1042, Whangarei

Ulrich McNab Kilpatrick, PO Box 633, Whangarei

NORSAND V THE WHANGAREI DISTRICT COUNCIL HC WHA CIV 2008-488-231 17 September 2008

[1]      Pursuant  to  the  judgment  I delivered  on  10  July 2008,  the  defendant  is entitled to costs assessed on a 2B basis with disbursements as fixed by the registrar. The defendant is seeking costs amounting to $8,800. The defendant’s claim is opposed by the plaintiff.

[2]      Included  in  costs  being  claimed  by  the  defendant,  is  a  claim  for  costs amounting to $2,560 for the preparation and filing of a second notice of opposition to the plaintiff’s application to preserve its caveat. The second notice of opposition with supporting affidavit, was required because an order was not made within the time required by the Land Transfer Act for the preservation of the plaintiff’s caveat following the lodging of the first application.

[3]      It is submitted on behalf of the plaintiff that the defendant should not be entitled to the costs involved in preparing and filing the second notice of opposition. The plaintiff contends that both applications involve the same issues and facts.

[4]      Whilst there were similarities between the two applications lodged by the plaintiff to preserve its caveat, there were also significant differences. In any event, the defendant was involved in preparing and filing two notices of opposition with affidavits in support. I accept that there must have been considerable reduction in the time required to prepare and file the second notice of opposition with supporting affidavit because of the information which was already in the possession of the defendant’s legal advisors as a result of the preparation and filing of the first notice of opposition and supporting affidavit.

[5]      In the circumstances, whilst I accept that the defendant is entitled to some costs on the preparation and filing of the second notice of opposition and supporting affidavit, I am satisfied that those costs should not be assessed at the same rate as the costs in respect of the first notice of opposition and supporting affidavit. Taking a very broad view of the situation, I consider that an appropriate award is to reduce the costs recoverable in respect of the second notice of opposition and affidavit by one half. Consequently, the costs payable in respect of the second notice of opposition

with  supporting  affidavit  is  fixed  at  $1,280  which  results  in  the  total  costs recoverable by the defendant in terms of my order being fixed at $7,520.

[6]      As neither party has been completely successful with regard to the review of the costs being sought by the defendant, I do not consider it appropriate to make any

order for costs in respect of that matter.

Associate Judge Robinson