BASELINE HOMES LTD (IN LIQN) V LONELY TRACK LAND CO LTD & ANOR HC AK CIV 2005-404-1713

BASELINE HOMES LTD (IN LIQN) V LONELY TRACK LAND CO LTD & ANOR HC AK CIV 2005-404- 1713 7 September 2005IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2005-404-1713UNDER the Land Transfer Act 1952 IN THE MATTER OF Caveat No 6271946.1 BETWEEN BASELINE HOMES LIMITED (IN LIQUIDATION) Applicant AND LONELY TRACK LAND COMPANY LIMITED Respondent AND MAXBUILD LIMITED As an Interested And Adversely Affected Party Hearing: 7 September 2005 (on the papers) Counsel: R Latton for applicant A Paterson for respondent and interested party Judgment: 7 September 2005 at 10:30JUDGMENT OF ASSOCIATE JUDGE FAIRE [as to costs]Solicitors: Lowndes & Associates, PO Box 7311, Auckland for applicant Markitlaw, PO Box 25 203, St Heliers, for respondent and interested partyThe application for costs[1] Maxbuild Limited seeks an order for costs against the applicant, Baseline Homes Limited (in liquidation) based on Category 2 Band B of the High Court Rules and in respect of the applicant's application that a caveat not lapse.Background[2] The applicant applied for an order that its caveat over certain lands of which the respondent was the registered proprietor, not lapse. [3] The caveat was claimed to protect an unregistered mortgage between the respondent, as mortgagor, and the applicant, as mortgagee. [4] The respondent filed a notice of opposition and alleged no sum was due under the mortgage. [5] Maxbuild Limited is the purchaser of some of the land in question. It claims it had no notice of the interest claimed in the caveat. It sought, and was given, the right to appear on the application and to take steps by Rodney Hansen J. It filed, as a result, a notice of opposition. [6] The applicant filed a notice of discontinuance. The respondent has endorsed a consent on that document. The consent confirms that there are no issues as to costs between applicant and respondent. The notice of discontinuance was received by the Court on 1 July 2005. As a result, the fixture scheduled for 6 July 2005 was vacated.Baseline Homes Limited's position on costs[7] The applicant, Baseline Homes Limited (in liquidation) does not contest the fact that Maxbuild Limited is entitled to costs. Counsel also advise that he accepts that the proper basis for calculating costs is 2B.Maxbuild Limited's claim[8] Maxbuild Limited's claim has been calculated on the following basis:Item No Item Time Cost $2 Commencement of defence - notice of opposition 2 2,900.00 3.5 Notice of appearance 0.2 290.00 4.17 Appearance at mentions 0.2 290.00 7.3 Defendant's preparation of affidavits to be used at hearing 2 2,900.00 7.4 Defendant's preparation for trial` 2 2,900.00Total $9,280.00 Specific matters to which objection is taken[9] The applicant contests the claim made under Items 7.3 and 7.4, which make up a total of $5,800. The applicant's counsel says costs should be ordered in the sum of $3,480. [10] The first issue requires a consideration of Item 2, the allowance for commencement of defence, notice of opposition, and Item 7.3, the allowance for the preparation of affidavits to be used at the hearing. [11] This matter, in turn, requires a consideration of r48B of the High Court Rules. Rule 48B provides:48B Determination of reasonable time(1) For the purposes of rule 47(c), a reasonable time for a step in a proceeding is—(a) The time specified for that step in Schedule 3; or (b) If Schedule 3 does not apply, a time determined by analogy with that schedule; or (c) If no analogy can usefully be made, the time assessed as likely to be required for the particular step. (2) In determining what is a reasonable time for a step in a proceeding under subclause (1),— (a) If a comparatively small amount of time for the particular step is considered reasonable, the determination must be made by reference to band A; or (b) If a normal amount of time for the particular step is considered reasonable, the determination must be made by reference to band B; or (c) If a comparatively large amount of time is considered reasonable, the determination must be made by reference to band C.[12] Mr Paterson, for Maxbuild Limited, confirms that 30 professional hours were involved in the taking of instructions which, of course, were used for the purpose of preparing the notice of opposition and the affidavits. The allowance under Item 2 and under Item 7.3 are two days each. The amount of time taken to cover the work covered by both of those steps equates to approximately four days. Accordingly, I reach the conclusion that the claims made pursuant to Items 2 and 7.3 are justified and should therefore be allowed. [13] The next matter relates to the allowance for preparation for trial. As I mentioned, this application was given a fixture date for 6 July 2005. Maxbuild Limited's lawyer was advised on 18 May 2005 that a settlement had been achieved and that that would result in the caveats being removed from the subject property. Withdrawals of caveats were, in fact, sent to Maxbuild Limited's solicitors on 9 June 2005. Bearing in mind the lead-time to the hearing, I do not consider it appropriate that provision for preparation for trial pursuant to Item 7.4 should be allowed in this case. Indeed, Mr Paterson confirms, in his memorandum, that written submissions had not been prepared before advice of the settlement had been given.Result[14] The above analysis results in an order for costs on a Category 2 Band B basis coming to $6,380. [15] Accordingly, I order that the applicant pay Maxbuild Limited's costs in the sum of $6,380 together with disbursements as fixed by the Registrar. ____________________ JA Faire Associate Judge