HART V ANZ NATIONAL BANK LIMITED HC AK CIV-2012-404-002583

HART V ANZ NATIONAL BANK LIMITED HC AK CIV-2012-404-002583

Hart and related companies deliberately abused the court's processes by lodging caveats piecemeal, concealing interests and pursuing a second interim injunction to frustrate mortgagee sales; as a result the Bank is entitled to indemnity (solicitor/client) costs under the security documentation and r 14.6(4), but the evidence did not establish that solicitor N G Cooke committed the gross negligence or serious dereliction of duty necessary for a personal costs order against him, so costs against Cooke were declined while he was removed as solicitor on record and address for service maintained until changed.

Citation
openlaw-7e5b87cd_2124_4d99_87e4_f15cee61e40b.pdf
Parties
First Plaintiff / First Respondent: Barry John Hart; Second Plaintiff / Fourth Respondent: Woodhill Stud Limited; Third Plaintiff / Fifth Respondent: Woodhill Holdings Limited; Fourth Plaintiff: Woodhill Corporation Limited; Defendant / Applicant: ANZ National Bank Limited; Solicitor on Record (former): N G Cooke; Second Respondent: Serenella Holdings Limited; Third Respondent: Woodhill Farms Limited; Sixth Respondent: Malory Corporation Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
6 September 2012
Procedural Posture
Civil Interlocutory (injunctions, Caveats, Costs) / Interlocutory (applications for Costs; Removal of Caveats; Withdrawal of Solicitor)
Outcome
Partial success for ANZ: indemnity (solicitor/client) costs awarded against Hart and related companies; costs against solicitor Cooke personally declined; caveat removal orders and procedural directions made.
Legal Topics
Abuse of Process, Indemnity (solicitor/client) Costs, Caveats and Removal, Mortgagee Sale, Solicitor Liability for Costs, Res Judicata, Withdrawal as Solicitor on Record
Civil Procedure Property Law Costs Law Equity Professional Negligence Abuse of Process Indemnity (solicitor/client) Costs Caveats and Removal +4 more

Case Brief

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Parties

Barry John Hart

First Plaintiff / First Respondent

Woodhill Stud Limited

Second Plaintiff / Fourth Respondent

Woodhill Holdings Limited

Third Plaintiff / Fifth Respondent

Woodhill Corporation Limited

Fourth Plaintiff

ANZ National Bank Limited

Defendant / Applicant

N G Cooke

Solicitor on Record (former)

Serenella Holdings Limited

Second Respondent

Woodhill Farms Limited

Third Respondent

Malory Corporation Limited

Sixth Respondent

Procedural Posture

Civil Interlocutory (injunctions, Caveats, Costs) / Interlocutory (applications for Costs; Removal of Caveats; Withdrawal of Solicitor)

Legal Issues

  1. 1 Whether Hart and related companies abused the court process by lodging caveats and pursuing a second injunction and are liable for indemnity (solicitor/client) costs
  2. 2 Whether the Bank is entitled to solicitor/client costs under loan security documentation and High Court Rules r 14.6(4)
  3. 3 Whether a costs order can be made personally against solicitor N G Cooke for alleged participation in the abuse of process

Ratio Decidendi

Hart and related companies deliberately abused the court's processes by lodging caveats piecemeal, concealing interests and pursuing a second interim injunction to frustrate mortgagee sales; as a result the Bank is entitled to indemnity (solicitor/client) costs under the security documentation and r 14.6(4), but the evidence did not establish that solicitor N G Cooke committed the gross negligence or serious dereliction of duty necessary for a personal costs order against him, so costs against Cooke were declined while he was removed as solicitor on record and address for service maintained until changed.

Court Disposition

Partial success for ANZ: indemnity (solicitor/client) costs awarded against Hart and related companies; costs against solicitor Cooke personally declined; caveat removal orders and procedural directions made.

Orders

  • Declaring that Mr Cooke has ceased to be solicitor on record for the plaintiffs in the 2583 proceedings and the respondents in the 3643 proceedings
  • Directing that the current address for service of 15-17 Jervois Road, Ponsonby, Auckland 1011 is to remain as the address for service of Mr Hart and his related companies in both proceedings until a change in address for service is filed