IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2015-404-2865 [2016] NZHC 1119
UNDER
Section 145A of the Land Transfer Act
1952
IN THE MATTER
of an application for an order that Caveat Number 9969049.1 North Auckland Land Registration District not lapse
BETWEEN
LYNSIE KAREN SAMSON Applicant
AND
CHRISTOPHER ERNEST MOURANT, MARY ISOBEL KENNEDY AND SHORTLAND TRUSTEES LIMITED Respondents
On the papers
Judgment:
31 May 2016
JUDGMENT AS TO COSTS OF THOMAS J
This judgment was delivered by me on 30 May 2016 at 12.00 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date:………………………….
SAMSON v MOURANT & ORS [2016] NZHC 1119 [31 May 2016]
Introduction
[1] The applicant, Ms Samson, registered a caveat over a property in which she lived but which was owned by the M Mourant (No 2) Family Trust (the Trust). Ms Samson was a discretionary beneficiary of the Trust. After communication between the parties, the respondents, the Trustees, on behalf of the Trust lodged an application with Land Information New Zealand on 19 November 2015 for the early lapse of the caveat on the basis that Ms Samson had no caveatable interest in the property.
[2] On 1 December 2015, Ms Samson filed an application to sustain the caveat (the application). The parties by consent agreed that a hearing should be set down. The fixture was allocated for 29 February 2016.
[3] On 17 December 2015, Ms Samson’s lawyers wrote to the Trustees offering to discontinue the application if the Trustees paid $5000 toward Ms Samson’s legal fees, on the condition that a substantive application was made. It appears this offer was rejected.
[4] However, on 23 December 2015, the Trustees wrote to Ms Samson asking her to file substantive proceedings and to discontinue the application on the basis that the caveat would be sustained pending the outcome of the substantive proceedings. No offer of costs was made. On 24 December 2015, Ms Samson emailed protesting the refusal to pay costs and protesting the Trustees’ conduct.
[5] On 21 January, the Trustees sought an order from the Court that the caveat should not lapse on conditions, including that Ms Samson file and serve a statement of claim within a set period of time. On 22 January 2016, Ms Samson filed a memorandum of consent but seeking an order for costs.
[6] On 26 January 2016, I made the orders sought and directed the parties to file memoranda as to costs if they could not agree.
[7] Ms Samson says she is entitled to costs, and seeks an order for her actual or increased costs. The Trustees now argue that costs should be delayed until determination of the substantive proceedings, and that, if costs are awarded, they should not be actual or increased costs.
Should costs be reserved?
Submissions
[8] The Trustees say that the application is analogous to a summary judgment claim, in which costs are often not fixed when the application is determined. This exception to the general approach is…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Samson v Mourant [2016] NZHC 1119
Case
[2016] NZHC 1119
Decision Date
CaseChat Overview and Summary
Samson v Mourant involved an application by Lynsie Karen Samson to sustain a caveat over a property owned by the M Mourant (No 2) Family Trust, with the Trustees acting on behalf of the Trust as respondents. The Trustees sought to have the caveat lapse, arguing that Ms Samson had no caveatable interest in the property. The central issue before the court was whether costs should be awarded to the successful party immediately or reserved until the substantive proceedings were determined. The court held that costs should be fixed at the time of the decision in accordance with the general principles set out in the High Court Rules, which dictate that costs are typically awarded to the successful party when the application is determined. The court rejected the analogy to summary judgment applications, noting that the principles governing caveat applications differ. The court found that Ms Samson was the successful party and awarded her costs on a 2B basis, with a 30 per cent uplift due to the Trustees' unreasonable refusal to accept a compromise on costs. This resulted in unnecessary expenditure by Ms Samson. The final order awarded Ms Samson costs totaling $11,390.60.