SCHOENBERGER-ORGAD V SCHOENBERGER HC HAM CIV 2007-419-001937

SCHOENBERGER-ORGAD V SCHOENBERGER HC HAM CIV 2007-419-001937 10 April 2008IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY CIV 2007-419-001937IN THE MATTER OF section 140 Property Law Act 1952 BETWEEN MICHELE ANNE SCHOENBERGER- ORGAD Plaintiff AND JEANNE DORIS SCHOENBERGER Defendant Hearing: 10 April 2008 (on the papers) Counsel: P Gorringe for plaintiff S Chatwin for defendant Judgment: 10 April 2008 at 1230JUDGMENT OF ASSOCIATE JUDGE FAIRE [on costs]Solicitors: Till Henderson King, PO Box 19 342, Hamilton for plaintiff Ellice Tanner, PO Box 19 144, Hamilton for defendant[1] The plaintiff seeks costs in respect of a summary judgment application which resulted in the making of an order by consent. [2] The plaintiff sought summary judgment seeking an order for sale of a property at 930 River Road, Hamilton. [3] The matter was first called on 29 January 2008. It was adjourned to 1 February 2008 to see if counsel could agree on appropriate directions for sale. They did. Their agreement covered a default position, namely what would happen if a contract which was signed by the defendant and forwarded by the defendant's solicitor to the purchaser on 30 January 2008, the day after the first call, did not settle. The proceeding does seem to have produced an executed agreement for the sale of the property. [4] Counsel's memoranda on costs traverse a number of matters not specifically covered in the affidavit evidence. I perceive that some of that material in fact, if it is to be the subject of a further proceeding between the parties, should be dealt with in that proceeding and not on this simple application for an order for sale. [5] One matter that is important, however, in analysing the cost position is that the parties entered into an agreement which is dated 1 February 2008 and which is attached to counsel's memorandum. That specially deals with the division of proceeds of sale and might well, otherwise, have been the subject of orders made under ss 140 or 141 of the Property Law Act 1952. [6] Rule 46 provides that costs are to be in the discretion of the Court. InMansfield Drycleaners Ltd v Quinny's Drycleaning (Dentice Drycleaning Upper Hutt) Ltd CA 296-01 29 September 2002 the Court of Appeal, in noting the Court's over-riding discretion pursuant to r 46 said:there is a strong implication that a Court is to apply the regime in the absence of some reason to the contrary: Body Corporate 97010 v Auckland City Council. We do not think that a Court should hesitate to depart from the regime where appropriate but we agree that some articulation of the reason for doing so is to be expected, however succinct. If no reason is given it will expose the award to close appellate scrutiny.[7] The general principles to be applied in the exercise of that discretion are those contained r 47. The first general principle there stated is that the party who fails with respect to a proceeding should pay the costs to the party who succeeds. As I have recorded, the proceeding seems to have produced the executed agreement for sale and purchase. That result is the relief sought by the proceeding. [8] In counsel's memorandum in reply, the plaintiff confirms that the actual costs of the plaintiff are $1,687.50 together with a filing fee of $1,100.00. [9] It is apparent that the actual costs of the plaintiff do not exceed a costs calculation carried out in accordance with the Third Schedule to the High Court Rules on a Category 2 basis and apply Items 1, 4.10 and 5 of that Schedule. What is apparent, therefore, any order I make cannot exceed $1,687.50 plus disbursements by virtue of r 47(f) of the High Court Rules. [10] The circumstances outlined, in my view, justify the exercise of the general discretion under r 46 and a departure from the costs regime in the Rules which follow because of: a) The actual costs incurred; and b) The process does not cover the completion of the formal agreement as to the distribution of proceeds of sale resulting from the operation of the order for sale that was made. I consider, in the special circumstances, that the defendant should be ordered to pay two-thirds of the actual costs incurred plus the filing fee disbursement.Orders[11] The defendant shall pay costs of $1,125.00 plus the filing fee disbursement of$1,100.00. _____________________ JA Faire Associate Judge