Sia-Fox v Jubilee Management Limited (in liquidation)

[2012] NZHC 326

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CIV-2010-454-771 [2012] NZHC 326

BETWEEN  BOON KEE SIA-FOX Plaintiff

ANDJUBILEE MANAGEMENT LIMITED (IN LIQUIDATION)

Defendant

CIV-2010-454-377

AND UNDER                  the Land Transfer Act 1952

IN THE MATTER OF     an application pursuant to s 145A that a caveat not lapse

BETWEEN  BOON KEE SIA-FOX Applicant

ANDJUBILEE MANAGEMENT LIMITED Respondent

Judgment:      6 March 2012

JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL

This judgment of Associate Judge Gendall was delivered on 6 March 2012 at 3.00 pm under r 11.5 of the High Court Rules.

Solicitors:           Fitzherbert Rowe, Solicitors, Private Bag 11 016, Palmerston North

BK SIA-FOX V JUBILEE MANAGEMENT LIMITED (IN LIQUIDATION) HC PMN CIV-2010-454-771 [6

March 2012]

[1]      This judgment relates to a costs order which the defendant now seeks against the plaintiff in this and related proceedings.

[2]      In October 2010 the plaintiff brought the present proceeding CIV-2010-454-

771 seeking declarations as to the validity of agreements for the sale and purchase of an Otaki property (the substantive proceeding).

[3]      The substantive proceeding followed a partly successful application by the plaintiff in proceeding CIV-2010-454-337 for an order sustaining a caveat on the title of the Otaki property in question (the caveat proceeding).

[4]      In the caveat proceeding this Court dealt with the issue of costs at [46] in the following way:

[46]     It is inappropriate for any costs award to be made at this stage, they being best left for final disposition of the (substantive) proceedings to be filed.

[5]      On 15 September 2011 the plaintiff discontinued the substantive proceeding. Consequently the defendant now seeks an order that the plaintiff pay the defendant’s costs in respect of both the substantive proceeding and the caveat proceeding.

[6]      On this, the defendant relies on r 15.23 of the High Court Rules which provides:

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

[7]      As to the costs sought, the defendant suggests costs should be allocated on a category 2B scale basis.  A schedule of costs and disbursements has been provided by counsel for the defendant.   As to the caveat proceeding the category 2B costs sought  by  the  defendant  total  $6,392.00.    On  the  substantive  proceeding,  the category   2B   costs   sought   by   the   defendant   total   $9,024.00.      In   addition disbursements being a Court filing fee on a statement of defence and sealing fee totalling $191.41 are sought.

[8]      In response to this costs claim the plaintiff Ms Sia-Fox filed a memorandum on 27 February 2012.  This memorandum indicates the plaintiff seeks a “deferment” of payment of the costs sought by the defendant.  The memorandum contends that the plaintiff “was pressured by her counsel to discontinue the Court proceeding”.

[9]      In addition and rather confusingly, the plaintiff seems to suggest that “the rationale for initiating the “substantive proceeding” is the subject of further High Court proceeding CIV-2010-454-771 and it is therefore inappropriate for any costs award to be made at this stage. The plaintiff contends costs should therefore “best be left for final disposition of the scheduled High Court proceeding”.

[10]     In so far as the plaintiff ’s contention that the substantive proceeding is the subject of further proceedings under CIV-2010-454-771 is concerned, this is highly confusing to say the least.  That proceeding CIV-2010-454-771 was specifically the subject of the Notice of Discontinuance from the plaintiff which was filed on 15

September 2011.   That discontinuance concluded the matter.   Nothing further has happened since September 2011 to in any way change that position.

[11]     The belated suggestion from the plaintiff that she was “pressured by her counsel to discontinue” this proceeding is not supported in any way by any accompanying evidence or explanation.   I am simply unable to pursue that matter further.

[12]     What  is  clear  here  is  that  the  plaintiff  did  discontinue  the  substantive proceeding which she was directed to pursue as part of the decision in the caveat proceeding.   The provisions of r 15.23 are clear in a case such as the present, that the plaintiff must pay the defendant’s costs with respect to that proceeding.

[13]     Costs are sought on the substantive proceeding on a category 2B scale basis and in my view these are appropriate.  As to the quantum of those costs, the plaintiff does not in any way challenge or question the claim for $9,024.00 outlined in the Schedule of Costs put forward by the defendant.

[14]     Clearly in my view the defendant was put to some considerable trouble to defend the substantive proceeding, a proceeding which was later discontinued.  As such, it is entitled to the 2B costs sought at the figure of $9,024.00.  An order to this effect is to follow.

[15]     So far as costs on the caveat proceeding are concerned, although the plaintiff was notionally successful in having the caveat sustained on the basis that the Court found she had an arguable case to the caveatable interest claimed, this was clearly subject to the outcome of the final substantive proceedings which the Court had directed were to be brought by her “to have her contentions finally resolved”. As the plaintiff has chosen now to discontinue those substantive proceedings, it is difficult to escape the presumption that her earlier contentions could not be sustained.

[16]     That said, in my view the defendant is also entitled here to an order for costs on the caveat proceeding.  The only proper conclusion to be reached here is that the plaintiff  by  choosing  to  discontinue,  has  effectively  failed  in  both  the  final disposition of this matter being the substantive proceeding and also the caveat proceeding, and must pay costs to the plaintiff on both.

[17]     Costs on the caveat proceeding are sought on a 2B basis totalling $6,392.00 as I have noted above.   The plaintiff does not in any way challenge the quantum sought and in my view that amount is appropriate here.

[18]     An order is to follow that the plaintiff is to pay to the defendant costs on the caveat proceeding totalling $6,392.00.

Conclusion

[19]     For the reasons I have outlined above the defendant is entitled to orders for costs against the plaintiff on both the substantive proceeding and the caveat proceeding.

[20]     Orders are now made therefore that the plaintiff is to pay to the defendant category 2B costs on the substantive proceeding totalling $9,024.00 and category 2B

costs  on  the  caveat  proceeding  totalling  $6,392.00  together  with  disbursements totalling $191.41.

‘Associate Judge D.I. Gendall’