Parks v Sutherland

[2012] NZHC 2636

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CIV-2011-454-005 [2012] NZHC 2636

UNDER  section 145A of the Land Transfer Act 1952

BETWEEN  JOHN CHARLES PARKS Applicant

ANDSALLY SUTHERLAND Respondent

Hearing:         On Papers

Memoranda as to costs for the applicant - 31 August 2012 and 24
September 2012
Memoranda as to costs for the respondent - 3 September 2012 and 21
September 2012

Judgment:      5 October 2012

JUDGMENT AS TO COSTS OF ASSOCIATE JUDGE D.I. GENDALL

Pursuant to r 11.5 of the High Court Rules I direct the Registrar to deliver this judgment at 3.00 pm on 5 October 2012.

Solicitors:           Vallant Hooker & Partners, Solicitors, PO Box 47088, Ponsonby, Auckland

Grant Allan, Barrister, PO Box 564, Masterton

JC PARKS V S SUTHERLAND HC PMN CIV-2011-454-005 [5 October 2012]

[1]      On 3 September 2012 Associate Judge Matthews in this Court granted leave to  the  applicant  to  withdraw  his  application  seeking  orders  that  Caveat  No.

8039186.1 not lapse.   In doing so, Associate Judge Matthews reserved costs and directed that the parties had a further opportunity to file memoranda.  A decision on costs was then to be made on the papers.

[2]      Counsel for the respondent has filed memoranda seeking costs dated 3 and 21

September 2012.  The order sought in her favour is for reduced costs on a category

2B basis of $2,000.00 given that the application by the applicant to sustain the caveat and the caveat itself has now been withdrawn.

[3]      In turn, counsel for the applicant filed his memoranda on costs dated 31

August 2012 and 24 September 2012.  In his memoranda counsel for the applicant suggested that costs should simply lie where they fall.

[4]      I  have  had  an  opportunity  to  consider  the  submissions  advanced  in  the respective memoranda provided by counsel and now give my decision on costs.

[5]      The starting point in any consideration of costs must be the primary principle outlined in r 14.2(a) High Court Rules that the party who fails with respect to a proceeding  or  an  interlocutory  application  should  pay  costs  to  the  party  who succeeds.

[6]      Counsel for the respondent suggests that this usual principle requiring costs to follow the event should apply in this case and the respondent should be entitled to an award of costs given that the application before the Court has been withdrawn and the applicant’s caveat removed.

[7]      In my view there is force in this submission.

[8]      In response, however, counsel for the applicant in his 24 September 2012 memorandum made reference to the length of time which had elapsed since original registration of the caveat in December 2008 and the time at which the respondent through her solicitor took the formal step of lodging an application with the Registrar to lapse the caveat in December 2010.  As a result, counsel for the applicant noted

that the present application had to be completed in January 2011 circumstances of urgency.

[9]      Then,  it  seems  little happened  with  respect  to  the present  application  as Family Court proceedings between the parties had been commenced and were proceeding.

[10]     Finally, it would appear that those Family Court proceedings ended with the result that the applicant had no choice but to withdraw his caveat, a caveat which had originally been lodged on the stated basis claiming a constructive trust.

[11]     Notwithstanding  the  detailed  submissions  advanced  by  counsel  for  the applicant in his memorandum dated 24 September 2012 that there should be no costs order in this matter,  I take the view that the respondent here as effectively the successful party should be entitled to a modest costs award.  I reach this view also given particularly the procedural history in this matter and the largely pragmatic stance which has been adopted by the respondent over the relevant time with regard to the caveat, thus keeping the costs in question within reasonable parameters.  In addition, I am satisfied that on balance it does seem that there was no valid basis for the caveat to be lodged in any event.

[12]     An award of costs therefore in favour of the respondent is to follow.

[13]     As  to  quantum,  counsel  for  the  respondent  has  suggested  that  a  mix  of category 2B and 2A costs in this matter would total some $3,178.00, but that an award of costs of say $2,000.00 (which would not exceed the actual costs to be charged to the respondent on this proceeding) would be appropriate.

[14]     I agree that a fair and appropriate costs award in favour of the respondent here would be $2,000.00.  Judgment for costs on this proceeding is therefore given in favour of the respondent against the applicant totalling $2,000.00, which amount is to be paid within 20 working days of the date of this judgment.

‘Associate Judge D.I. Gendall’