Lakes International Golf Management Limited v Vincent

[2015] NZHC 3040

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2013-404-3387 [2015] NZHC 3040

BETWEEN

LAKES INTERNATIONAL GOLF

MANAGEMENT LIMITED First Plaintiff

THE LAKES INTERNATIONAL GOLF COURSE LIMITED

Second Defendant

AND

HARTLEY CLENDON VINCENT Defendant

Hearing:	(on the papers)
Counsel:	C C Mansell and R W Ackroyd for Plaintiffs M J Fisher and H L Hui for Defendant
Judgment:	3 December 2015

JUDGMENT (NO. 2) OF HEATH J

This judgment was delivered by me on 3 December 2015 at 2.00pm pursuant to

Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Martelli McKegg, Auckland
Castle Brown, Newmarket, Auckland
Counsel:

M Fisher, Auckland

LAKES INTERNATIONAL GOLF MANAGEMENT LIMITED v VINCENT [2015] NZHC 3040 [3 December

2015]

Introduction

[1]      On 9 November 2015, I gave judgment in this proceeding.1     I said that judgment would be entered in favour of Lakes International Golf Management Ltd (International Golf Management) and The Lakes International Golf Course Ltd (International Golf Course) against Mr Vincent.2

[2]      I sought submissions on the form of order to be sealed, and ordered costs in favour of both International Golf Management and International Golf Course on a

2B basis,  together  with  reasonable disbursements.3     Although  I directed  a joint

memorandum to be filed, memoranda were received from counsel for each party.

[3]      Draft orders were forwarded by counsel for International Golf Management and  International  Golf  Course  to  the  solicitors  and  counsel  for  Mr  Vincent  on

16 November 2015.  Having not received a response counsel for International Golf Management and International Golf Course filed a memorandum formulating declarations, and quantifying costs.   Subsequently, a memorandum was received dated 19 November 2015 from counsel for Mr Vincent, and a response from counsel for   International   Golf   Management   and   International   Golf   Course   dated

25 November 2015.   I determine the various issues raised by reference to those memoranda.

Costs

[4]      I deal first with a question of costs.   Counsel for Mr Vincent submits that there was  no  opportunity to  make submissions on  costs.    In  effect,  Mr Vincent applies  to  recall  my  judgment  and  submits  that  reduced  costs  are  justified  by reference to r 14.7(b), (e), (f)(ii) and (g) of the High Court Rules.

[5]      Mr Fisher, for Mr Vincent, refers to the following factors:

(a)       The  property or  interest  at  stake  was  of  exceptionally low  value, namely the sum of $5,070

1      Lakes International Golf Management Ltd v Vincent [2015] NZHC 2771.

2 Ibid, at para [39].

3      Ibid, at paras [40] and [41].

(b)By International Golf Management and International Golf Course’s own evidence, these proceedings concerned a matter of public interest in that there were 40 properties in the Lakes’ Resort which would be affected by the Court’s ruling

(c)      International Golf Management and International Golf Course took unnecessary steps, namely its applications for further and better discovery and for non-party discovery

(d)      The proceedings were launched against Mr Vincent as a test case.

Mr Vincent acted reasonably in defence of his own rights

(e)      Mr Vincent has been forced to incur the expense of High Court proceedings, essentially on behalf of a pool of defendants.

[6]      Even assuming jurisdiction to recall,4  I am not persuaded that any of those factors justify an award below standard costs.5    In summary, while the amount at stake as between the particular parties was (I accept) “exceptionally low” for High Court proceedings, Mr Vincent regarded his private rights as sufficiently important

to justify an appeal to the Court of Appeal, after cross applications for summary judgment were dismissed in the High Court.6

[7]      I had intended to leave the fixing of costs to the Registrar.  That is something I now do, so that Mr Vincent has the opportunity to challenge any particular costs that International Golf Management and International Golf Course may seek.

Form of declarations

[8]      So far as the form of the order is concerned, Mr Fisher submits that the relief, proposed go beyond what is sought and seeks a more restrictive form of relief, which

4      See Horowhenua County v Nash (No. 2) [1968] NZLR 632 (CA), approved by the Supreme Court in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 2) [2010] 1 NZLR 76 at para [2].

5      Bradbury v Westpac Banking Corporation [2009] 3 NZLR 400 (CA) at para [27].

6      Vincent v Lakes International Golf Management Ltd [2014] NZCA 323, upholding Associate

Judge Sargisson’s decision in Lakes International Golf Management Ltd v Vincent [2013] NZHC
2901.

would not equate International Golf Management with the “golf club” referred to in

the Covenant in issue.

[9]      I do not accept Mr Fisher’s submissions.  The term “golf club” was defined by cl 9 of the Covenant.7    It means “the golf club to be incorporated …”.   It was incorporated as International Golf Management.  For the purposes of the Covenant, International Golf Management is the “golf club”.

Result

[10]     Accordingly, the Registrar is authorised to seal a judgment in these terms:

(a)       Judgment is entered in favour of International Golf Management and

International Golf Course in the sum of $5,070. (b)     Orders declaring:

(i)International Golf Management is the “golf club” defined by clause 9.4, and referred to in clause 7 of Covenant 5800996.1 registered on the property described as Lot 75, Deposited Plan South Auckland 88978, Identifier SA70C/464 and

(ii)      Mr Vincent is required to join the golf club.

(c)       Mr   Vincent   shall   pay   to   International   Golf   Management   and

International Golf Course a sum of $602.84, being interest from 5 July

2013 to 20 November 2015, at the rate prescribed by the Judicature

Act 1908.

(d)Costs   are   awarded   on   a   2B   basis,   together   with   reasonable disbursements.   Both costs and disbursements shall be fixed by the

Registrar.  No certificate for second counsel.

7      Set out in Lakes International Golf Management Ltd v Vincent [2015] NZHC 2771, at para [14].

[11]     The last of those orders reflects my original intention (omitted from my first judgment) that costs and disbursements be fixed by the Registrar.   That enables Mr Vincent to be heard on questions of quantum.

[12]     No costs  are ordered  in respect of the preparation of documents for the purpose of this judgment.

P R Heath J

Delivered at 2.00pm on 3 December 2015