Paterson v Registrar-General of Land

[2020] NZHC 1824

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2020-441-4

[2020] NZHC 1824

BETWEEN

GARTH BOWKETT PATERSON

Plaintiff

AND

THE REGISTRAR-GENERAL OF LAND

Defendant

AND

LEPIONKA & COMPANY INVESTMENTS LIMITED

Second Defendant

AND

LEPIONKA & COMPANY LIMITED

Third Defendant

AND

STEFAN JOZEF JOHN LEPIONKA AND NIGEL WARREN HUGHES AS

TRUSTEES OF THE S J LEPIONKA FAMILY TRUST
Fourth Defendants

AND

HORSESHOE BEND MANAGEMENT COMPANY LIMITED

Fifth Defendant

Hearing:

On the papers

Counsel:

Plaintiff in person

K Naik-Leong and O Wilkinson for the First Defendant
J H Stevens and S J Leslie for the Second to Fifth Defendants

Judgment:

27 July 2020

JUDGMENT OF GRICE J

(Costs on discontinuance)

[1]        This is an application for costs by the defendants following the lodging of a notice of discontinuance by the plaintiff on 5 June 2020.

PATERSON v THE REGISTRAR-GENERAL OF LAND [2020] NZHC 1824 [27 July 2020]

[2]        There are other proceedings referred to as the parallel proceedings (CIV-2019- 441-78) which are scheduled for an interlocutory hearing on 10 and 11 August 2020. The first defendant, the Registrar-General of Land (Registrar-General), is not involved in those.

Registrar-General’s application for costs

[3]        The Registrar-General in these submissions in support of costs says this is the second set of proceedings that Mr Paterson has commenced and discontinued against the Registrar-General. The Registrar-General says the two proceedings arise from the same facts, namely the acquisition by Lepionka & Company Investments Ltd as the mortgagee in possession of registrable interests in 354 Kahuranaki Road, Havelock North, Hawkes Bay.

[4]        The earlier proceedings were filed in the Napier Registry of the High Court under CIV-2019-441-47 alleging various breaches of duty by the Registrar-General as well as seeking an interim injunction. Following a case management conference in those proceedings where the Judge drew Mr Paterson’s attention to the possibility that his actions in commencing the proceedings might ultimately be found to be a contempt of court, Mr Paterson took legal advice  and  issued  a  notice  of  discontinuance.1 Mr Paterson subsequently sought to have that proceeding reinstated but Doogue J on 18 September 2019 refused to grant that application.2 The Registrar General did not seek costs on that application.

[5]Rule 15.23 of the High Court Rules 2016 provides that:

Unless the defendant otherwise agrees or the court otherwise orders, a plaintiff who discontinues a proceeding against a defendant must pay costs to the defendant of and incidental to the proceeding up to and including the discontinuance.

[6]        That provision effectively removes the need for a defendant to demonstrate that the plaintiff acted unreasonably in commencing and then discontinuing the proceeding. It amounts to in effect a presumption that a defendant should be awarded

1      Paterson v Registrar-General of Land, HC Napier, CIV-2019-441-47, 8 August 2019 (Minute No 2 of Churchman J).

2      Paterson v Registrar-General of Land [2019] NZHC 2356.

costs.3 While the presumption in favour of an award of costs to the defendant can be displaced it is up to the discontinuing plaintiff to establish that there are circumstances which exist to displace the presumption.

[7]        In the circumstances I can see no reasons which would displace the usual presumption. The Registrar-General calculated costs in accordance with category 2B of the High Court Rules 2016.4 The costs up to and including the filing of an application for a stay of proceedings total $6,543 together with disbursements of

$173.91 for filing fees. In all the claim amounts to $6,626.91. The amounts as set out in the schedule attached to the memorandum of the Registrar-General appear reasonable for the steps taken to date. It is appropriate that the costs be calculated according to category 2B.5

[8]        Accordingly, I award the Registrar-General costs and disbursements in the amount set out in the schedule attached to its memorandum of 29 June 2020.

The second to fifth defendants’ application

[9]        The second to fifth defendants (the defendants) also claim costs. However, they are seeking an uplift of 50 per cent on costs calculated on a 2B category calculation.6 The actual costs incurred have not been produced by the defendants.

[10]      The grounds for this uplift are that the proceedings have been pursued for an ulterior motive, the case is hopeless and there has been unnecessary and improper behaviour or misconduct by Mr Paterson causing loss of time to the Court and contributing unnecessarily to the time and expense incurred by the defendants.

[11]      In relation to the allegation that these proceedings are pursued for an ulterior motive the defendants point to previous litigation between them and the plaintiff. They say this is evidence of a continued pattern of misconduct designed to block the second defendants’ continuation of a development and subdivision and to harass and cause

3      Kroma Colour Prints Ltd v Tridonicato NZ Ltd [2008] NZCA 150, [2008] 18 PRNZ 973 at 12.

4      High Court Rules 2016, r 14.3 and schs 2-3.

5      High Court Rules 2016.

6      High Court Rules 2016.

delay and costs to all the defendants. They point to adverse judicial comment in relation to the earlier litigation.

[12]      As to the allegation that this is a hopeless case they say the land transfers which were sought to be impugned were made more than seven months before the statement of claim was filed, were not served on the second to fifth defendants in breach of     s 54(4) of the Land Transfer Act 2017 and that Mr Paterson knew the case was hopeless as he had already sought to block the transfers in earlier proceedings in which he was found to be contempt of Court.

[13]      The unnecessary and improper conduct or misconduct which the defendants say have added to the time and expense incurred by the defendants, they say were illustrated by Mr Paterson’s failure to serve them as required by s 54 of the Land Transfer Act, the filing of two separate but substantially similar proceedings and the failure to discontinue when Churchman J made a joinder order without opposition from Mr Paterson.7 Therefore they say Mr Paterson should have discontinued these proceedings in about May 2020 and he did not do so.

[14]      A further allegation by the defendants is that the proceedings were commenced vexatiously against the first defendant which affected the interests of the second to fifth defendants despite their not being named or served in either.

[15]      Mr Paterson is self-represented. He responds by saying that he has acted responsibly and reasonably by filing the notice of discontinuance. He says it was not until Cull J made comments at the first case management conference on 2 June 2020 that he became aware that these proceedings may not be necessary (presumably because of the parallel proceedings).8 As to matters referred to by the defendants as they relate to earlier discontinued proceedings he says any short comings were due to his lack of procedural knowledge as he is without the appropriate legal skill set.

7      Paterson v The Registrar-General of Land HC Napier CIV-2020-441-4, 29 April 2020.

8      Counsel for the defendants cannot recall discussion of this issue. However, I am not able to determine what occurred at that teleconference.

[16]      Mr Paterson denies that either of his claims were frivolous or without merit. In any event he says the earlier proceedings which involved the parties were determined substantially against the defendants.

[17]      The application for costs relates to this proceeding for which the discontinuance is filed. I have no detailed information on the costs awards made in the earlier proceedings to which the defendants refer, nor am I in a position to assess the merits or otherwise of those and the present proceedings, although I note there appear to have been a number of them. I am not satisfied any increased costs above the scale should be awarded on the basis of the earlier proceedings.

[18]      Turning to the issue of the parallel proceedings, Mr Paterson says the need to discontinue only dawned on him at the first case management teleconference before Cull J. This was relatively early in the proceedings. He also points to his lack of knowledge of the “procedural niceties”.

[19]      Scale costs are intended to represent approximately two thirds of actual costs. Generally costs awards above those indicated by the scale will not be awarded unless the Judge is satisfied that the relevant party has acted vexatiously, frivolously, improperly or unnecessarily in commencing or continuing a proceeding or a step in the action.9

[20]      The various approaches to assessment were summarised by the Court of Appeal in Bradbury v Westpac Banking Corp:10

[27]     The distinction among our three broad approaches – standard scale costs, increased costs and indemnity costs – may be summarised broadly:

(a)standard scale applies by default where cause is not shown to depart from it;

(b)increased costs may be ordered where there is a failure by the party to act reasonably; and

(c)indemnity costs may be ordered where that party has behaved either badly or very unreasonably.

9      High Court Rules 2016, r 14.6(4)(a).

10     Bradbury v Westpac Banking Corp [2009] NZCA 234, [2009] 3 NZLR 500.

[21]      I am of the view that the second to fifth defendants are entitled to an award of costs.

[22]      This is a case that has been discontinued at a relatively early stage of the proceedings. The matter has not been to a hearing. Mr Paterson took heed of Cull J’s comments at the case management conference. I am not in a position to properly consider the merits of these or the other extant proceedings. I am not satisfied indemnity or increased costs should be awarded under r 14.6(4).

[23]      I am however satisfied that costs should be calculated in accordance with category 2B. This is the same basis as the award in favour of the first defendant.

[24]      The issue of costs in relation to the “parallel” proceedings as the defendants call them, will no doubt be dealt with in due course. This costs judgment may be relevant at that stage. However that is a matter for the Judge dealing with that application.

[25]      Accordingly, I award costs in favour of the defendants calculated on the basis of category 2B of the High Court Rules.

Grice J

Solicitors:

Garth Bowkett Paterson, Hastings for the Plaintiff Crown Law, Wellington for the First Defendant

Belly Gull, Wellington for the Second to Fifth Defendants