Schierning v Airedale Adventures Limited

[2019] NZHC 3055

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2019-425-121

[2019] NZHC 3055

UNDER

the Land Transfer Act 2017

IN THE MATTER

of Caveat No 1130131.1 (Otago)

BETWEEN

KURT JOHN SCHIERNING

Applicant

AND

AIREDALE ADVENTURES LIMITED

Respondent

Hearing:

21 November 2019

Appearances:

J C D Guest for Applicant

S N van Bohemen for Respondent

Judgment:

21 November 2019

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 21 November 2019 at 4.30pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 21 November 2019

SCHIERNING v AIREDALE ADVENTURES LIMITED [2019] NZHC 3055 [21 November 2019]

[1]    This proceeding concerns an application by Mr Shierning for an order that caveat 1130119.1 registered against Identifier OT10C/278, Otago Land Registration District, not lapse.

[2]    The  matter  was  set  down  for  a  first  call  today,  21  November  2019.   Mr van Bohemen appeared for the respondent having only very recently being instructed.

[3]    Mr van Bohemen had suggested that there be a consent order that the caveat would not lapse provided that Mr Shierning files substantive proceedings to establish the interest he claims in the respondent’s land.

[4]    Mr Guest, counsel for the applicant, was prepared to adopt that course and accordingly the following order is made by consent:

(1)That caveat 11301319.1 registered against Identifier IT10C/278, Otago Land District being an estate in fee simple containing 760 square metres more or less on Lot 7 Deposited Plan 19559, not lapse.

(2)The above order is an interim order but will become a final order upon the applicant filing substantive proceedings to enforce his claim in the above property by Friday 20 December 2019.

[5]That left the question of costs.

[6]    Mr Guest sought costs on a 2B basis, essentially on the grounds that his client had no option but to bring the application to protect his claimed interest.

[7]    Mr van Bohemen resisted costs and suggested that the application to lapse the caveat had only been brought by his client because a lack of communication from the applicant. Mr Guest disputed there had been a lack of communication from the applicant.

[8]    The fact is when an application to lapse caveat is made, a person taking that step runs the risk that an application to sustain the caveat will be made putting in train

a process that may end in Court proceedings and an application for costs. As the applicant has been successful in sustaining his caveat, then in my view costs should follow the event.

[9]    Accordingly, there is an award of costs in favour of the applicant on a 2B basis together with disbursements as fixed by the Registrar.

[10]Leave reserved to apply should the need arise.

Associate Judge Lester

Solicitors:

Downie Stewart Lawyers, Dunedin Layburn Hodgins, Christchurch

Copy to counsel:
S N van Bohemen, Barrister, Christchurch