CAPITAL SALES PROPERTIES LIMITED V N K HENDERSON BUILDERS LIMITED HC WN CIV 2010-485-725
Because the parties reached an agreement that conferred mutual benefit and the respondent was reasonably entitled to question the applicant's claims, the judge exercised discretion to refuse a costs award and directed that costs lie where they fall.
Source-derived case information.
- Citation
- openlaw-de489647_881b_4dec_a56f_d735b6992a43.pdf
- Parties
- Applicant: CAPITAL SALES PROPERTIES LIMITED; Respondent: N K HENDERSON BUILDERS LIMITED
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 11 June 2010
- Procedural Posture
- Caveat Proceedings Under Land Transfer Act 1952 / Costs Application / Judgment on Costs
- Outcome
- Costs lie where they fall.
- Legal Topics
- Caveat, Costs, Land Transfer Act 1952, High Court Rules
Source-derived case record
Summary, issues, holding and outcome
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Parties
CAPITAL SALES PROPERTIES LIMITED
Applicant
N K HENDERSON BUILDERS LIMITED
Respondent
Procedural Posture
Caveat Proceedings Under Land Transfer Act 1952 / Costs Application / Judgment on Costs
Legal Issues
- 1 Whether costs should be awarded following withdrawal of opposition to caveat
- 2 Whether increased or solicitor/client costs should be granted for counsel's preparation
- 3 Whether respondent's conduct justified an adverse costs order
Ratio Decidendi
Because the parties reached an agreement that conferred mutual benefit and the respondent was reasonably entitled to question the applicant's claims, the judge exercised discretion to refuse a costs award and directed that costs lie where they fall.
Court Disposition
Costs lie where they fall.
Orders
- Costs lie where they fall.
Full Case Text
Judgment text and source record
1 paragraphs
CAPITAL SALES PROPERTIES LIMITED V N K HENDERSON BUILDERS LIMITED HC WN CIV 2010- 485-725 11 June 2010IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV 2010-485-725UNDER Land Transfer Act 1952 IN THE MATTER OF a caveat against dealings, instrument no. 8467719.1 BETWEEN CAPITAL SALES PROPERTIES LIMITED Applicant AND N K HENDERSON BUILDERS LIMITED Respondent Counsel: J D Haig for the Applicant B Sheehan for the Respondent Judgment: 11 June 2010 JUDGMENT AS TO AWARD OF COSTS ASSOCIATE JUDGE CHRISTIANSEN(On the papers)This judgment was delivered by me on 11.06.10 at 2:30 pm, pursuant to Rule 11.5 of the High Court Rules. Registrar/Deputy Registrar DateSolicitors/Counsel J D Haig, Barrister, Wellington – jonathan@portnic.co.nz B Sheehan, Avison Reid Lawyers, Lower Hutt – ben.sheehan@avisonreidlawyers.co.nz[1] Counsel have filed memoranda regarding costs. The applicant seeks costs for the whole of the application on a category 2B basis. Alternatively solicitor/client costs or on increased costs award is sought for counsel's preparation of full submissions for the hearing. [2] The respondent opposes and submits costs should lie where they fall. [3] I have read the material provided by counsel and although I do not have the file before me, (I am in Auckland and the file is in Wellington) I have a clear impression about how the application should be dealt with. [4] The application was successful to the extent that the respondent withdrew its opposition shortly prior to the hearing. But, as my earlier minute indicated, the agreement reached between the parties for the withdrawal of the caveat provided a gain for both parties. [5] There are assertions of fault causing costs and delays, made by both sides. My feeling is the respondent was within its rights and reasonably did question information offered by the applicant in support of sales claims. Building contract claims can be difficult to resolve. The agreement reached over the applicant's offer to retain funds appears to have been responsibly managed by both sides. [6] This is not an appropriate case for awarding costs and I direct they lie where they fall.Associate Judge Christiansen