Edith Farms Limited v Providence Lands Limited

[2014] NZHC 790

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2013-419-820 [2014] NZHC 790

IN THE MATTER             of an application to sustain a caveat

IN THE MATTER             of an application pursuant to the Land

Transfer Act 1952

BETWEEN  EDITH FARMS LIMITED Applicant

ANDPROVIDENCE LANDS LIMITED Respondent

Hearing:                   On the papers

Counsel:                  DM O'Neill for applicant

AR Gilchrist for respondent

Judgment:                16 April 2014

JUDGMENT OF FAIRE J [on costs]

This judgment was delivered by me on 16 April 2014 at 10am pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Botherway Legal, Hamilton 3240 (D Botherway) Kiely Thompson Caisley, Auckland 1141 (P Kiely)

EDITH FARMS LIMITED v PROVIDENCE LANDS LIMITED [2014] NZHC 790 [16 April 2014]

[1]      In my judgment of 25 November 2013 I refused the applicant’s application that its caveat not lapse.  As a consequence, I ordered that the caveat be removed from the relevant title.

[2]      On the question of costs, I recorded the following in my judgment:1

At counsel’s request I reserve costs.  If counsel cannot agree, memoranda in support, opposition and reply shall be filed and served at seven-day intervals. The first memorandum shall be filed and served not more than 15 working days after the release of this judgment.

[3]      Counsel   for   the   respondent   filed   a   memorandum   seeking   costs   on

18 December 2013.

[4]      Counsel for the applicant has advised the Case Officer responsible for this file by email that he has no instructions from the client and therefore cannot file anything in opposition to the application for costs.

[5]      Rule 14.1 gives the Court a discretion to order costs in relation to a step taken in a proceeding.  That discretion is generally to be exercised in accordance with the specific Rules contained in rr 14.2-14.10:  Glaister v Amalgamated Dairies Ltd.2   In Mansfield Drycleaners  Ltd v Quinny’s Drycleaning (Dentice Drycleaning Upper Hutt) Ltd3 it was said of the costs regime contained in what is now rr 14.2-14.10 that:

there is a strong implication that a Court is to apply the regime in the absence of some reason to the contrary

The test to be applied is entirely an objective and not a subjective one.   The only reference which  it is necessary to make towards actual costs is  to be found in r 14.2(f), namely that an award of costs should not exceed the costs incurred by the party claiming the costs: Glaister v Amalgamated Dairies Ltd.4

[6]      Rule 14.2 lists the principles applying to determination of costs. Subrule (a)

affirms the principle that the losing party should pay the costs to the successful party.

1      Edith Farms Ltd v Providence Lands Ltd [2013] NZHC 3108 at [45].

2      Glaister v Amalgamated Dairies Ltd [2004] 2 NZLR 606 (CA) at [19].

3      Mansfield Drycleaners Ltd  v  Quinny’s Drycleaning (Dentice Drycleaning Upper Hutt) Ltd

(2002) 16 PRNZ 662 (CA) at 668.

4      Glaister v Amalgamated Dairies Ltd, above n 2, at 610 at [14].

Subrule (b) requires that the costs reflect the complexity and significance of the proceedings and refers specifically, therefore, to the categorisation of a proceeding which is provided for in r 14.3.

[7]      Rule 14.4 sets the appropriate daily rates as specified in Schedule 2 of the High Court Rules.   Rule 14.5 refers to the Third Schedule which allocates time allowances for specific steps and refers to the appropriate band, depending upon the time considered reasonable for a particular step which is identified in Schedule 3.

[8]      I have considered counsel for the respondent’s memorandum, in which steps

referred to in Schedule 3 are set out and which indicates that, based on Category 2

Band B, the appropriate cost order should be $10,149.   I am satisfied, in terms of r 14.3, that this is a Category 2 proceeding and that each of the steps identified in counsel for the respondent’s memorandum justifies the Band B designation referred to in r 14.5.

[9]      There is some discussion as to whether there is a need to seal two orders.  I am satisfied that there is, in this case, and that therefore the total disbursements for sealing fees claimed of $100 is correct.   There is no information before me that questions, in any way, the disbursements being the cost of photocopying the casebook, at $70.  This appears reasonable in the circumstances and, for that reason, I allow it.

[10]     Having  regard  to  the  above  reasons,  I  order  that  the  applicant  pay  the

respondent’s costs in the sum of $10,149 together with disbursements of $170.

Faire J