Emslie v Genuine Investments Limited

[2005] NZHC 1838

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2004-404-4803

IN THE MATTER OF

BETWEEN

Section 145 of the Land Transfer Act 1952

VALERIE JOAN EMSLIE AND GORDON WILLIAM EMSLIE

Applicant

AND

GENUINE INVESTMENTS LIMITED

First Respondent

AND

JUDITH MAY CHEYNE AND MACKY TRUSTEE COMPANY LIMITED AS TRUSTEES OF THE RS TRUST

Second Respondent

Hearing:

By memoranda

Appearances: Mr J T Burley for applicants

Mr R O Parmenter for second respondents Judgment:  24 February 2005 at 12.30 pm

JUDGMENT OF ASSOCIATE JUDGE LANG

[re Costs]

[1]    In my judgment delivered on 28 January 2005 I indicated that it was my tentative view, given the particular circumstances of this case, that costs should lie where they fall. I reserved leave to the parties, however, to submit  memoranda should either of them wish to advance a different proposition.

[2]    Both counsel have now filed memoranda. The applicants seek an order for costs on a category 2B basis in their favour.

[3]    Mr Burley for the applicants emphasises that costs should usually follow the event and that in this case the second respondents actively opposed the application

EMSLIE V GENUINE INVESTMENTS LIMITED And Anor HC AK CIV-2004-404-4803 24 February 2005

and that their efforts in this regard were ultimately unsuccessful. On that basis Mr Burley submits that there is no reason to depart from the usual principle that the unsuccessful party should be required to meet the costs of the successful party.

[4]Mr Parmenter submits that costs should lie where they fall.

[5]    My tentative view that costs should lie where they fall was influenced by the fact that the underlying dispute between the parties remains unresolved. The second respondents may ultimately establish that their interest in the property has priority over that of the applicants. It might seem wrong, therefore, to award costs against  the second respondents when their assertions might ultimately be shown to be correct. Having reflected further on the matter, I am satisfied that the costs of this application fall to be determined independently of the underlying dispute between the parties. It should be determined in accordance with the principles generally applied by the Court in fixing costs.

[6]    Although costs are in the discretion of the Court, nevertheless that discretion must be exercised in accordance with the principles set out in Rule 47 and 48 of the High Court Rules. First and foremost of those is the principle that, generally speaking, the unsuccessful party should be required to contribute to the cost of the successful party.

[7]    In the present case the second respondents sought to be joined to the proceeding. They did so on the basis that they wished to actively oppose the continued existence of the caveat. Having been given leave to participate in the proceeding they made submissions in opposition to the  application.  Ultimately these were not upheld by the Court. They were therefore the unsuccessful party in relation to the application.

[8]    In those circumstances I am satisfied that, notwithstanding the fact that the substance of the dispute is yet to be resolved, it is appropriate that the applicants should have an award of costs in their favour.

[9]    That award should be reduced, however, to reflect the fact that part of the hearing was directed to the issue of whether or not the second respondents should remain as parties to the proceeding. That point was effectively (and in my view, properly) conceded by counsel for the applicants.

[10]   The applicants are therefore entitled to an award of costs and disbursements in their favour. Costs are to be calculated on a category 2B basis, but are to be reduced by 20 per cent to reflect the outcome of the argument in relation to the status of the second respondents. Disbursements are to be fixed by the Registrar.

G L Lang Associate Judge

Signed at:am/pm            on:

Solicitors:

Callaghan & Co, P O Box 1434, Auckland – facsimile 309 3269

R O Parmenter, P O Box 1052, Shortland Street, Auckland – facsimile 309 8303 Macky & Co, P O Box 37-622, Auckland – facsimile 309 0556