BANK OF NEW ZEALAND V WESLEY JOHN LIDDLE AND ASTRID ANNA LIDDLE HC AK CIV 2009-404-006245

BANK OF NEW ZEALAND V WESLEY JOHN LIDDLE AND ASTRID ANNA LIDDLE HC AK CIV 2009- 404-006245 30 November 2009IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2009-404-006245UNDER Section 137 of the Property Law Act 2007 BETWEEN BANK OF NEW ZEALAND Plaintiff AND WESLEY JOHN LIDDLE AND ASTRID ANNA LIDDLE Defendants Appearances: R Gordon for the Plaintiff E Orlov for the Defendants Judgment: 30 November 2009JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN [On the papers]This judgment was delivered by me on01.12.09 at 5:00pm, pursuant to Rule 540(4) of the High Court Rules. Registrar/Deputy Registrar DateSolicitors/Counsel: R Gordon, Buddle Findlay, Wellington – richard.gordon@buddlefindlay.com E Orlov, Barrister, Auckland – evgeny.orlov@equitylaw.co.nz[1] On 28 October 2009 the plaintiff (BNZ) filed a notice of discontinuance. Earlier by statement of claim it sought an order for vacant possession/termination of tenancy concerning a property at Te Atatu Peninsula, Auckland. The property was registered in the names of the defendants (the Liddles) as trustees of a property trust. [2] The statement of claim pleads that from May 2009 the Liddles breached their obligations under the mortgage by refusing to pay amounts totalling almost $58,000 that BNZ says was due. Property law act notices were served but were not complied with. Thereafter BNZ as mortgagee accrued the right of possession but the Liddles refused to vacate. The parties' dispute was recently subject of an outcome in a proceeding brought by the Liddles seeking an interim injunction preventing the sale of their properties. The Liddles' application failed. In her judgment Potter J held that the balance of convenience clearly favoured BNZ. She said the Liddles' pleaded claim failed to establish any proper basis for the intervention of this Court. She added "indeed, it completely lacks merit". [3] In the present proceeding on 16 October 2009 the Liddles filed a notice of opposition to BNZ's summary judgment application. No other document has been filed on behalf of the Liddles. The Court has recently received an order for sealing costs in favour of the Liddles against BNZ. It seeks costs on a 2B basis in the sum of $4,560.00. [4] The Liddles' claim for costs is misconceived. Counsel for the Liddles asks for costs for "commencement of Defense" but, no statement of defence has actually been prepared, filed or served. [5] Costs are also sought for the preparation for the hearing of a defended summary judgment application. But no hearing date has been scheduled for such. [6] The only prospect of an award of costs concerns the filing of a notice of opposition. In the rules under scale 2B the Court can award .6 of a day for the preparing and filing of a notice of opposition and supporting affidavits. In this case no supporting affidavits were filed for the Liddles. The maximum that the Court would be prepared to allow by way of costs for the filing of a notice of oppositionsolely, would be .2 of a day. In this case however I am satisfied costs should lie where they fall. Although rule 15.23 creates a presumption that costs will follow the event on a discontinuance, as Mr Gordon submits on behalf of BNZ this presumption may be displaced if in the circumstances a different costs outcome is just and equitable. [7] In this case the proceeding was discontinued when BNZ achieved an unconditional sale of the Liddles' property. Until then the Liddles had clearly and without proper identified reason caused interference and obstruction with the mortgagee sale process. [8] The Court is not to seal the defendants' award for costs.Associate Judge Christiansen