MISTRY & ORS V MEAD & ORS HC AK CIV 2007-404-002790

MISTRY & ORS V MEAD & ORS HC AK CIV 2007-404-002790

The Mistry interests were the successful party on both the caveat and substantive proceedings (the striking out being analogous to a discontinuance) and are entitled to costs under the High Court Rules. The court allowed specified category-based costs and allowed surveyor disbursements but apportioned the portion of survey fees that conferred a mutual benefit, reducing that portion by half. Final orders required the Mead interests to pay specified costs and disbursements to the Mistry interests.

Citation
openlaw-f06f90be_e6d6_4a82_b791_e5b82ded8ac0.pdf
Parties
Plaintiffs (civ 2007 404 002790); Defendants (civ 2007 404 005114): Dinesh Mistry; Geeta Mistry; Shantilal Mistry as Trustees of the Kadiawad Trust; Defendants (civ 2007 404 002790); Plaintiffs (civ 2007 404 005114): Brian Mead; Pamela Margaret Mead; Peter John Davidson as Trustees of the B and PM Mead Family Trust
Court
High Court
Jurisdiction
New Zealand
Judgment Date
8 July 2008
Procedural Posture
Civil Property Dispute (caveat and Boundary / Survey) / Application for Costs Following Striking Out and Caveat Proceedings
Outcome
Order for costs and disbursements in favour of the Mistry interests against the Mead interests
Legal Topics
Caveat, Boundary Survey, Limitation as to Parcels, Costs Assessment, Disbursements, Striking Out/discontinuance Analogy
Property Law Civil Procedure Costs and Litigation Funding Survey/land Transfer Caveat Boundary Survey Limitation as to Parcels Costs Assessment +2 more

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Parties

Dinesh Mistry; Geeta Mistry; Shantilal Mistry as Trustees of the Kadiawad Trust

Plaintiffs (civ 2007 404 002790); Defendants (civ 2007 404 005114)

Brian Mead; Pamela Margaret Mead; Peter John Davidson as Trustees of the B and PM Mead Family Trust

Defendants (civ 2007 404 002790); Plaintiffs (civ 2007 404 005114)

Procedural Posture

Civil Property Dispute (caveat and Boundary / Survey) / Application for Costs Following Striking Out and Caveat Proceedings

Legal Issues

  1. 1 Whether the Mistry interests were entitled to costs for the caveat application and the subsequent standard track proceeding
  2. 2 Whether striking out the substantive proceeding is analogous to a plaintiff's discontinuance for costs purposes
  3. 3 Whether disputed surveyor fees and other disbursements should be allowed in full or apportioned between the parties

Ratio Decidendi

The Mistry interests were the successful party on both the caveat and substantive proceedings (the striking out being analogous to a discontinuance) and are entitled to costs under the High Court Rules. The court allowed specified category-based costs and allowed surveyor disbursements but apportioned the portion of survey fees that conferred a mutual benefit, reducing that portion by half. Final orders required the Mead interests to pay specified costs and disbursements to the Mistry interests.

Court Disposition

Order for costs and disbursements in favour of the Mistry interests against the Mead interests

Orders

  • Brian Mead, Pamela Margaret Mead and Peter John Davidson shall pay costs in respect of the caveat proceedings of $3,200 and disbursements of $6,857.50 to the Mistry interests
  • Brian Mead, Pamela Margaret Mead and Peter John Davidson shall pay costs in respect of the substantive proceeding of $8,800 and disbursements of $3,652.66 to the Mistry interests