JAMES KERRY LANGTON AND MURRAY BRYCE FREESTONE V DOUGLAS MARK ANDREW BURGESS HC AK CIV 2009-404-005470

JAMES KERRY LANGTON AND MURRAY BRYCE FREESTONE V DOUGLAS MARK ANDREW BURGESS HC AK CIV 2009-404-005470 10 June 2010IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2009-404-005470BETWEEN JAMES KERRY LANGTON AND MURRAY BRYCE FREESTONE Plaintiffs AND DOUGLAS MARK ANDREW BURGESS Defendant Counsel: J B Samuel for the Plaintiffs N Reid for Defendant J Burns for the Registrar-General of Land Judgment: 10 June 2010JUDGMENT AS TO AWARD OF COSTS ASSOCIATE JUDGE CHRISTIANSEN (On the papers)This judgment was delivered by me on 10.06.10 at 3:30 pm, pursuant to Rule 11.5 of the High Court Rules. Registrar/Deputy Registrar DateSolicitors/Counsel: J B Samuel, Jennifer Connell, Auckland – jenniferconnell@jgconnell.co.nz T Stewart/N Reid, Kennedys, Auckland – t.stewart@kennedys-law.co.nz / n.reid@kennedys-law.co.nz J Burns/J Andrew, Crown Law, Wellington – burns@crownlaw.govt.nz / andrewJ@crownlaw.govt.nz[1] In this case the plaintiffs have sued their former solicitor who acted for them in the purchase of a residential development property. They claim their solicitor failed to search relevant certificates of title which disclosed the existence of a land covenant which contained a height restriction which limited development options. [2] The solicitor acknowledged reading one of two cross lease titles only. He says he assumed that the underlying fee simple of both properties would be identical. There was no reference on the title he read to a height restriction. He claimed the Registrar-General of Land committed an error when the paper title was converted to the electronic register, in that it omitted to record the land covenant, being the height restriction, over that title. [3] The solicitor applied to join the Registrar-General of Land as a third party. [4] On 5 May 2010 I heard the solicitor's application to join the Registrar- General as a third party. Application was made on behalf of the Registrar-General to be heard in opposition. Leave was granted but because counsel for the defendant had not received the Registrar-General's submissions prior to the hearing I granted an adjournment to enable the preparation of submissions in reply. [5] On 14 May 2010 counsel for the solicitor advised she had an opportunity to review the Registrar-General's submissions and on the basis of those wished to withdraw its application for joinder. Leave to withdraw was granted and counsel were directed to submit memoranda as to costs.Costs[6] The Registrar-General's application for costs is opposed. In effect counsel advise that had she been made aware of the relevant case law, specifically the decision of the Court of Appeal in Harvey v Hurley & Ors 1 . The application for joinder would not have been made. The effect of that decision was to note that the solicitor as a matter of law had the details of the relevant land covenant1 9 NZCPR 427constructively placed before his eyes and therefore was deemed to have read it or to have constructive knowledge of it. [7] Although I was not required to make a ruling upon the merits of the joinder application I was of the firm view that it could not succeed. I indicated as much in my minute to the parties dated 26 May 2010 when I invited counsel to submit memoranda as to costs. In my view the law and the facts in this case established that there were at all relevant times no less than three memorials referring to relevant restrictive covenants which were deemed to have come to the notice of the solicitor. [8] A third party is not usually eligible to receive an award of costs but a third party is seldom heard upon such an application. This application involved an important principle of law. It was for that reason I permitted the Registrar-General to be heard. Ultimately the Registrar-General's submissions were persuasive in encouraging the solicitor to withdraw its joinder application. [9] This is not an appropriate case to let costs lie where they fall. [10] There is an order that the defendant pay the Registrar-General's costs in the sum of $1,600 calculated on a category 2B basis. No claim is made for disbursements. No order for payment of same is made.Associate Judge Christiansen