IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2023-409-502
[2023] NZHC 3390
IN THE MATTER of an agreement for sale and purchase of real estate BETWEEN
CRAIG DENNIS THOMPSON
Plaintiff
AND
TERESSA JANE BASSETT and DARYN JAMES BASSETT
Defendants
Hearing: On the papers Counsel:
J I Taylor for Plaintiff
D M Jackson for Defendants
Judgment:
28 November 2023
JUDGMENT OF ASSOCIATE JUDGE PAULSEN
This judgment was delivered by me on 28 November 2023 at 10.15 am pursuant to rule 11.5 of the High Court Rules
THOMPSON v BASSETT [2023] NZHC 3390 [28 November 2023]
[1] The plaintiff (Mr Thompson) issued summary judgment proceedings against the defendants (the Bassetts) seeking specific performance of an agreement for sale and purchase. The summary judgment application was due to come before the court on 26 October 2023, by which time the transaction had settled. Whilst reserving rights against each other to pursue various claims in another forum, the only issue left to be determined in this court was in relation to costs.
[2] Timetable directions were made for the filing of submissions on costs and those have been received. Mr Thompson is seeking indemnity costs or, in descending order, increased costs or 2B scale costs. The Bassetts’ position is that costs ought to lie where they fall, but if costs are to be awarded they should be reasonable scale 2B costs.
Background
[3] The parties filed affidavits in the summary judgment proceeding and counsel’s memoranda address the facts in some detail. Mr Thompson also filed a large bundle of documents. It is not necessary for me to recount the facts in full, but some context is required.
[4] By an agreement for sale and purchase dated 18 September 2021, Mr Thompson agreed to purchase from the Bassetts a lot in the four-lot subdivision at Loburn Terrace Road.
[5] Mr Thompson’s solicitors, Wynn Williams, confirmed the conditions of the agreement on 5 November 2021.
[6] Mr Thompson went into possession of the property from around February 2022, but settlement could not occur until titles were available. Titles were issued on or about 7 June 2023, and accordingly the settlement date under the agreement was on or around 21 June 2023.
[7] The Bassetts say they were ready to settle on 21 June 2023. However, at that time Mr Thompson brought a compensation claim against them, and they in turn disputed the claim and gave notice of their intention to pursue various counterclaims
against Mr Thompson. A barrister was appointed to adjudicate, but Mr Thompson elected to withdraw his claim on 28 July 2023.
[8] On 1 August 2023, Wynn Williams served a settlement notice requiring the Bassetts to settle by 17 August 2023. There were a number of issues that were of concern to the Bassetts and raised by their lawyers, Maciaszek Brown, in a letter of 9 August 2023, which proposed the parties engage in discussion or mediation to resolve matters. Having received no response…
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- AGLC
- Thompson v Bassett [2023] NZHC 3390
- Case
- [2023] NZHC 3390
- Decision Date
CaseChat Overview and Summary
The court considered the legal principles governing costs in proceedings resolved prior to a hearing. The court acknowledged that the determination of costs should be predictable and expeditious and that the party that has lost should pay the costs of the party that has won unless there are exceptional reasons to the contrary. The court also noted that increased or indemnity costs may be awarded if the opposing party has acted vexatiously, frivolously, improperly, or unnecessarily in commencing, continuing, or defending a proceeding or a step in a proceeding.
In its analysis, the court found that Thompson was successful in achieving the primary objective of the proceeding, which was to have the Bassetts settle under the agreement. The court determined that Thompson was entitled to take the view that the issuing of proceedings was necessary, given the difficult history between the parties and the Bassetts' refusal to settle in accordance with the agreement. However, the court agreed with the Bassetts that once the proceedings were issued, they acted reasonably and there was no basis upon which the court could award indemnity or increased costs. The court concluded that Thompson was entitled to scale costs and ordered that Thompson be awarded $10,277 plus disbursements of $1,173.91.
In summary, the court awarded Thompson costs in the proceeding of $10,277 plus disbursements of $1,173.91. The court found that Thompson was successful in achieving the primary objective of the proceeding, and while the Bassetts' conduct prior to the issue of proceedings was relevant, their conduct in defending the proceeding was reasonable. The court determined that Thompson was entitled to scale costs and ordered the Bassetts to pay those costs.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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