Thompson v Bassett - [2023] NZHC 3390

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…

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.

Continue reading Thompson v Bassett

Details

AGLC: Thompson v Bassett [2023] NZHC 3390
Case: [2023] NZHC 3390
Decision Date: 28 November 2023

CaseChat Overview and Summary

The case of Thompson v Bassett concerns an agreement for the sale and purchase of a property located at Loburn Terrace Road. Craig Dennis Thompson, the plaintiff, sought specific performance of the agreement against the Bassetts, the defendants. The transaction was settled before the summary judgment application could be heard. The only issue remaining for the court was the determination of costs. Thompson sought indemnity costs, increased costs, or at least 2B scale costs, while the Bassetts argued that costs should lie where they fall or, at most, be reasonable scale 2B costs.

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