Paul v Paul

[2013] NZHC 2141

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CIV 2013-463-000375 [2013] NZHC 2141

UNDER

Section 145A of the Land Transfer Act

1952

IN THE MATTER OF

An application that caveat not lapse

BETWEEN

ROBERT LORRAINE PAUL Applicant

AND

CORENE GEORGINA PAUL Respondent

Hearing:	On the papers
Appearances:	N J Edwards for the Applicant F Wood for the Respondent
Judgment:	22 August 2013

JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

This judgment was delivered by me on

22.08.13 at 4:30 pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

R L PAUL v C G PAUL [2013] NZHC 2141 [22 August 2013]

[1]      On 16 August 2013 I issued a judgment dismissing the application to sustain a caveat.    I also  awarded  costs  to  the respondent  on  a 2B basis  together with disbursements as approved.

[2]      Counsel for the applicant has filed a memorandum requesting a recall of that judgment so that the parties can be heard on the issue of costs.  Counsel complains that  the  parties  were  not  invited  to  make  submissions  on  costs  at  the  hearing. Counsel submits there is a very special reason of justice requiring that the judgment be recalled i.e. to enable submissions on costs to be presented.

[3]      In appropriate cases a judgment may be recalled to consider the issue of costs.

Decision

[4]      The application is refused.

[5]      Although at the conclusion of the hearing on 14 August 2013 the Court did not request additional submissions from counsel on the questions of costs, it is clear that the issue of costs had been fairly addressed on the applicant’s behalf in the written submissions filed by counsel.  Indeed it was counsel that advocated that the Court should depart from its normal practice in reserving costs for determination at a substantive hearing and instead award costs on a 2B basis in favour of the applicant. Those submissions were supplemented by submissions orally given at the hearing.

[6]      For the applicant it is submitted that the application to sustain the caveat may not have been pursued had a copy of the respondent’s Will been made available to her  earlier  than  it  was.    Because  of  that  it  is  said  the  applicant  forewent  an opportunity to agree a procedure for resolving the dispute.

[7]      The Court’s clear recollection is that neither factor would have discouraged the applicant from pursuing the matter to a Court hearing.

[8]      The Court considers that nothing new is raised by this application which was not available for consideration in the course of the hearing.

[9]      The Court  agrees  with  Mr Wood’s  submission  that  there  are  insufficient reasons to depart from the normal principle that the successful party should have costs awarded in its favour and further it cannot be said that there are any special characteristics of this case which constitute “special reasons” why justice requires

the judgment to be recalled.

Associate Judge Christiansen