Sain v Millie Erceg Trustee Limited

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-000546

[2020] NZHC 1778

UNDER the Land Transfer Act 2017

IN THE MATTER

of an application under s 143

BETWEEN

VINKA PATRICIA SAIN
Applicant

AND

MILLIE ERCEG TRUSTEE LIMITED

Respondent

Hearing: On the papers

Judgment:

22 July 2020

JUDGMENT OF DOWNS J

(Costs)

This judgment was delivered by me on Wednesday, 22 July 2020 at 11 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel: LawWorks, Auckland. Anthony Harper, Auckland. DR Bigio QC, Auckland.

SAIN v MILLIE ERCEG TRUSTEE LTD [2020] NZHC 1778 [22 July 2020]

[1] Ms Sain successfully applied to sustain a caveat on the title to a home. She seeks 2B costs in relation to her application. The respondent contends costs should be determined at the end of the trial, when the outcome is known, as Ms Sain’s (substantive) claim hinges on credibility determinations. The respondent also cites delay on Ms Sain’s part.

[2] I award Ms Sain 2B costs for the simple reason she was successful.1 If the respondent succeeds at trial, it will have trial costs.

……………………………..

Downs J

1 Rule 14.2(1)(a), High Court Rules 2016. Were this an interlocutory application, costs would also be fixed now (pursuant to r 14.8).

CaseChat Overview and Summary

In the High Court of New Zealand, Vinka Patricia Sain applied to sustain a caveat on the title to a home against Millie Erceg Trustee Limited. The dispute concerns the right of Ms Sain to maintain a caveat on the property title, which she had initially lodged. Ms Sain sought costs in relation to her application, while the respondent argued that costs should be determined at the conclusion of the trial, considering the outcome of the substantive claim and citing potential delays caused by Ms Sain.

The legal issue before the court was whether Ms Sain was entitled to costs for her successful application to sustain the caveat. The court had to consider whether the successful party in an interlocutory application should receive costs immediately or if costs should be deferred until the final determination of the substantive proceedings. Additionally, the court had to assess any arguments by the respondent regarding delays in the proceedings caused by Ms Sain.

The court awarded Ms Sain 2B costs for her successful application to sustain the caveat. The judge, Downs J, reasoned that as Ms Sain was successful in her application, she was entitled to costs. The court noted that if the respondent prevails at the trial, it will incur trial costs. Downs J also highlighted that if the application were interlocutory, costs would be fixed at that stage under the relevant rules.

The court's decision concluded with an award of costs to Ms Sain, noting that the respondent would be liable for trial costs if it succeeds in the substantive proceedings. The reasoning focused on the immediate entitlement to costs due to the success of the application, while also considering the procedural rules governing interlocutory applications.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

UNDER	the Land Transfer Act 2017
IN THE MATTER	of an application under s 143
BETWEEN	VINKA PATRICIA SAIN Applicant
AND	MILLIE ERCEG TRUSTEE LIMITED Respondent