JEB MANAGEMENT LIMITED v GRUBZ UNITED WHANAU TRUST [2015] NZHC 2070

JEB MANAGEMENT LIMITED v GRUBZ UNITED WHANAU TRUST [2015] NZHC 2070 [28 August 2015]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2014-404-2587[2015] NZHC 2070BETWEEN JEB MANAGEMENT LIMITEDApplicantAND GRUBZ UNITED WHANAU TRUSTRespondentsHearing: On the PapersAppearances: D Mitchell for ApplicantP Webb for RespondentsJudgment: 28 August 2015JUDGMENT OF TOOGOOD J [COSTS]This judgment was delivered by me on 28 August 2015 at 3:00 pmPursuant to Rule 11.5 High Court RulesRegistrar/Deputy Registrar[1] On 12 February 2015 I delivered a judgment ordering that a caveat registered against the property at 56 Wymondley Road, Otara, Manukau, shall be removed from the title.1 I directed that the applicant was entitled to costs.2[2] The parties could not agree on costs and on 2 March 2015 Mr Mitchell filed on behalf of the applicant a draft costs order calculated on a 2B basis in the sum of $8,756, plus disbursements inclusive of GST of $624.75.[3] Mr Webb filed a memorandum on behalf of the respondents on 19 March 2015, indicating that the respondents had applied for legal aid and were at that time awaiting a final decision on the application. The applicant's costs application has been deferred until now while the legal aid decision was awaited. Mr Webb has now informed the Court that legal aid was refused and that legal assistance to the respondents was provided on a pro bono basis.[4] I commend Mr Webb for following the highest traditions of the legal profession by undertaking this work without fee for a client with obvious financial problems. Nevertheless, the respondents elected to resist what I have held to be a justified application by the applicant to remove the caveat, and failed to satisfy the Court that the order should not be made.[5] It is an essential principle of the costs regime that an unsuccessful partyshould pay the costs of a successful party and the respondents must be taken to haveknown at the time they were served with the application that they would besusceptible to an order for costs if they did not succeed. I adopt, with respect, thepertinent observations of Lord Neuberger, President of the UK Supreme Court that,"by becoming a party to legal proceedings a person is brought within a systemgoverned by rules of court, which carry with them the potential for being renderedlegally liable for costs, subject of course to the discretion of the court."3[6] I am informed that sufficient funds are currently held in trust in accordance with the agreement of sale and purchase on the property and that will enable costs to1 JEB Management Ltd v Grubz United Whanau Trust [2015] NZHC 157.2 At [48].3 Re Nortel GmbH [2013] UKSC 52, [2014] AC 209 at [89].be paid. I see no reason in this case to depart from the principle that costs should follow the event.[7] Mr Webb does not suggest that the costs sought are unreasonable and in the circumstances I make an order for costs in terms of the draft order filed with Mr Mitchell's memorandum of 2 March 1015.Toogood J