FM CUSTODIANS LIMITED V PENE PATI AND RICARDO OSCAR MARQUES AS TRUSTEES OF THE ARGEN FAMILY TRUST HC AK CIV 2012-404-000802

FM CUSTODIANS LIMITED V PENE PATI AND RICARDO OSCAR MARQUES AS TRUSTEES OF THE ARGEN FAMILY TRUST HC AK CIV 2012-404-000802

The presumption in r 15.23 was not displaced. Although the plaintiff was entitled to pursue guarantors while a mortgagee sale proceeded, it was not unreasonable but was unnecessary to commence against guarantors before the sale outcome was known; both parties had arguable positions but that does not justify displacing the presumption. The court retained discretion and declined to allow contractual indemnity to override costs discretion. The 2012 amendments to costs schedules apply only to steps taken after 14 June 2012; consequently costs on discontinuance were assessed and awarded to the defendants in the sum of NZD 8,755.80.

Citation
openlaw-4c3f4375_99f4_4950_a606_6eb3675c94d1.pdf
Parties
Plaintiff: FM Custodians Limited; Defendants: Pene Pati and Ricardo Oscar Marques as trustees of the Argen Family Trust
Court
High Court
Jurisdiction
New Zealand
Judgment Date
31 July 2012
Procedural Posture
Application for Summary Judgment / Application Withdrawn; Proceeding Discontinued; Costs Hearing
Outcome
Plaintiff ordered to pay costs to defendants on discontinuance
Legal Topics
Summary Judgment, Discontinuance, Costs on Discontinuance, Guarantee, Mortgagee Sale, Costs Schedule Transitional Application
Civil Procedure Contract Trusts Property Law Costs Law Summary Judgment Discontinuance Costs on Discontinuance +3 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 3 Authorities cited 11 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

FM Custodians Limited

Plaintiff

Pene Pati and Ricardo Oscar Marques as trustees of the Argen Family Trust

Defendants

Procedural Posture

Application for Summary Judgment / Application Withdrawn; Proceeding Discontinued; Costs Hearing

Legal Issues

  1. 1 Whether presumption in High Court Rules r 15.23 that a discontinuing plaintiff must pay costs is displaced
  2. 2 Whether it was reasonable for plaintiff to commence proceedings against guarantors before mortgagee sale concluded
  3. 3 Whether a contractual right to indemnity displaces the court's discretion on costs

Ratio Decidendi

The presumption in r 15.23 was not displaced. Although the plaintiff was entitled to pursue guarantors while a mortgagee sale proceeded, it was not unreasonable but was unnecessary to commence against guarantors before the sale outcome was known; both parties had arguable positions but that does not justify displacing the presumption. The court retained discretion and declined to allow contractual indemnity to override costs discretion. The 2012 amendments to costs schedules apply only to steps taken after 14 June 2012; consequently costs on discontinuance were assessed and awarded to the defendants in the sum of NZD 8,755.80.

Court Disposition

Plaintiff ordered to pay costs to defendants on discontinuance

Orders

  • Plaintiff to pay defendants costs on discontinuance in the sum of NZD 8,755.80