Zhu v New Zealand Home Bonds Limited

[2014] NZHC 19

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-005144 [2014] NZHC 19

UNDER  Part 19 of the High Court Rules

AND UNDER                   Section 143 of the Land Transfer Act 1952

BETWEEN  FENG ZHU Applicant

ANDNEW ZEALAND HOME BONDS LIMITED

Respondent

Hearing:                   28 January 2014

Appearances:           B Rooney for Applicant

D Campbell on instructions from S Cottrell for Respondent

Judgment:                28 January 2014

COSTS JUDGMENT OF VENNING J

Solicitors:           Diong Ding, Auckland

GCA Lawyers, Christchurch

Kensington Swan, Auckland

Copy to:            B Rooney, Auckland

FENG ZHU v NZ HOME BONDS LIMITED [2014] NZHC 19 [28 January 2014]

[1]      The application before the Court this morning is an application to have a caveat removed.   The application was for call this morning but in response to the application the respondent removed the caveat.  The only remaining issue is one of costs.

[2]      The applicant seeks costs to scale, together with an uplift in relation to the steps taken to pursue the issue of costs.  The application for costs is opposed by the respondent. A notice of opposition and affidavit in opposition has been filed.  I have heard  counsel  this  morning.    Counsel  spoke to,  in  the case of Mr  Rooney the submissions he had filed, and in the case of Mr Campbell, the notice of opposition and affidavit in support together with a helpful and concise summary of points advanced in opposition.

[3]      A number of general principles apply.

[4]      The first is that costs are at the discretion of the Court but they must be applied in a principled manner and in accordance with the rules applying to costs.

[5]      The second is that the application was for the removal of the caveat.   The caveat has been removed and despite Mr Campbell’s submissions, I consider that in the circumstances it can be regarded that the applicant was successful in that the relief sought from the Court was obtained.   However, given Mr Campbell’s submissions the Court does need to consider the matter in a little more detail.

[6]      Essentially Mr Campbell’s submissions are these, that the proceedings were unnecessary.   The applicant had an alternative process available under the Land Transfer Act 1952.  Notice could have been given to the Registrar.  It is extremely likely the caveat would simply have lapsed and there would have been no need for the  proceedings.    Related  to  that  he  submitted  the  Court  should  regard  that alternative procedure as analogous to the availability of District Court jurisdiction and apply a reduction or refuse costs.

[7]      I do not accept that a party in the position of the applicant is required to engage  in  the  145A procedure  before  making  an  application  to  remove.    The

applicant may choose to come directly to the Court if the applicant so desires.  In doing so the applicant of course takes the risks that the Court will not ultimately grant the application and he or she will be subject to costs themselves.   I make it clear that in my view there is no need for the applicant to first invoke the 145A procedure.

[8]      Indeed, in the past, the Court has criticised the use of such procedures given an application to remove is available.

[9]      In relation to the principal matter raised, Mr Campbell submitted that in fact the respondent was entitled to sustain the caveat because the property had not settled. This was in response to Mr Rooney’s submission that it was clear from the paper work that once the property had settled the right to sustain or register the caveat had been lost.   It is not for the Court on this application for costs to determine what would have been a substantial issue if the caveat had been sought to be sustained. The short point is that the respondent chose, when faced with these proceedings, to remove the caveat.

[10]     The most significant point made for the respondent is that there was no letter immediately prior to the issue of proceedings which might, it is suggested, have obviated  the  need  for  the  proceedings.    There  would  be  more  force  in  that submission if the respondent had addressed its mind to the matter when a previous request had been made.  It is conceded that a request to remove the caveat had been made earlier and declined by the respondent.

[11]     I accept Mr Campbell has submitted the matter is more nuanced than that but the point remains a request to remove the caveat was made.  The respondent for its own reasons at that time declined to remove the caveat then or thereafter.   It was open to the applicant at any time to bring these proceedings which ultimately he chose to do.

[12]     I take those submissions into account in declining any uplift for costs but otherwise I am satisfied that the applicant is entitled to costs against the respondent

to scale on a 2B basis for the steps taken in the proceeding and for the preparation of the submissions in relation to costs.

[13]     Order accordingly.

Venning J