STIRLING V DJ PARK AS EXECUTOR OF THE ESTATE OF GH STIRLING HC WHA CIV 2006-488-000704

STIRLING V DJ PARK AS EXECUTOR OF THE ESTATE OF GH STIRLING HC WHA CIV 2006-488- 000704 28 May 2008IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY CIV 2006-488-000704UNDER Sections 145 and 145A of the Land Transfer Act 1952 IN THE MATTER OF an application opposing lapse of caveat BETWEEN JASON PAUL STIRLING Applicant AND DESMOND JOHN PARK AS EXECUTOR OF THE ESTATE OF GRAHAM HERBERT STIRLING Respondent Hearing: 28 May 2008 (on the papers) Counsel: JT Refoy-Butler for applicant JL Foster for respondent Judgment: 28 May 2008 at 1630JUDGMENT OF ASSOCIATE JUDGE FAIRE [on costs]Solicitors: JT Refoy-Butler, PO Box 886, Wanganui for applicant Graham & Co, PO Box 8793, Auckland for respondent[1] The respondent seeks an order for costs arising from the discontinuance of an application by the applicant that a caveat not lapse. [2] The applicant applied for an order that a caveat not lapse. It was made in reliance on the procedure set out in s 145A of the Land Transfer Act 1952. The application was filed on 30 October 2006. It had its first call on 20 November 2006. [3] At the first call an order was made that the caveat not lapse pending further order. Directions were made for the filing of submissions and for a conference to be arranged to give fixture directions. A notice of opposition to the application was filed on 23 November 2006. That document drew attention to the fact that the property the subject of the caveat had previously being owned by the caveatee as a joint tenant. It pleaded that the caveatee took the property by survivorship and in circumstances where there could be no claim by the caveator against the title. In addition, it pleaded that the interest, at best, which the applicant could claimed required an order under the Family Protection Act 1955. A right to such order, which is an order from the residue of the estate, does not create an interest in land which would support a caveat: Guardian Trust & Executors Company of New Zealand Limited v Hall [1938] NZLR 1020 at 1026. [4] The applicant filed a notice of discontinuance on 29 November 2006. At a conference on 18 December 2006 I ordered that the caveat be removed. This was necessary having regard to the provisions of s 143 of the Land Transfer Act 1952. I made directions regarding costs. [5] The respondent was adjudicated a bankrupt. The respondent died on 18 April 2007. His bankruptcy was annulled on 15 October 2007. Orders were subsequently made dealing with the appointment of a personal representative in place of the named respondent. [6] The pleadings, in this case as I have mentioned, include the application dated 30 October 2006 and the notice of opposition which has a date stamp 23 November 2006. The proceeding is therefore covered by paragraphs 26 to 31 of the ThirdSchedule to the High Court Rules. Those paragraphs came into force from 1 June 2006 and as a result of r 23(5) of the High Court Amendment Rules 2006. [7] The application, notice of opposition and affidavits indicate that this is a Category 2 proceeding. [8] In a minute that I issued on 11 April 2008, I identified from the memoranda which counsel had filed five specific issues, namely: a) has there been a specific grant of legal aid to the applicant in respect of the caveat proceedings? b) If there has been a grant of legal aid, are there exceptional circumstances such that costs in excess of the contribution of the applicant to legal aid should be ordered? c) If there are no exceptional circumstances, what costs would have been ordered but for the Legal Services Act 1991, s 40(2)? d) What actual costs in respect of the opposition to the application to sustain the caveat have been charged to the respondent or his estate? Does that figure exceed a Category 2 Band B designation? e) If there was no grant of legal aid in respect of the caveat proceedings, what is the appropriate award of costs? [9] I have now been provided with confirmation that a specific grant of legal aid was made to the applicant in respect of the caveat proceedings. I have not been provided with any evidence as to the contribution ordered to be paid. The grant of legal aid makes applicable s 40 of the Legal Services Act 2000. [10] The second issue raised is whether or not there are exceptional circumstances. I am satisfied that there was no proper basis for the interest claimed in this caveat. However, the application was withdrawn and the notice of discontinuance was filed at a relatively early stage. I am not prepared to hold, in thecircumstances of this case, that there are exceptional circumstances which would justify an order in terms of s 40(2) of the Legal Services Act 2000. [11] The next inquiry is what actual costs in respect of the opposition to the application to sustain the caveat were charged to the respondent. Ms Foster has analysed these and I accept the figure she advanced of $6,500. I understand that Mr Refoy-Butler did not contest that analysis. [12] The next matter relates to costs calculated on a Category 2 Band B basis. Ms Foster carried out that exercise and it produced a figure of $9,120. I need not break that down because, again, I did not understand Mr Refoy-Butler to contest the calculation which Ms Foster advanced. What is apparent from this exercise is that a straight application of Category 2 Band B to this case is barred by the operation of r 47(f) of the High Court Rules because the award of costs must not exceed the costs incurred by the party claiming those costs. [13] Had there been no grant of legal aid in this case, I am satisfied when I consider the material on this file, that an appropriate order for costs would have been the costs actually incurred, namely $6,500. [14] The above conclusion takes me to the position where I can now declare, for the purposes of s 40(4) of the Legal Services Act 2000 that the amount which the applicant would have been ordered to pay, but for s 40, is $6,500. [15] I so order. _____________________ JA Faire Associate Judge