SCANNELL HARDY & CO SOLICITORS NOMINEES COMPANY LIMITED V PAALVAST HC ROT CIV 2004-463-04

SCANNELL HARDY & CO SOLICITORS NOMINEES COMPANY LIMITED V PAALVAST HC ROT CIV 2004-463-04 16 April 2007IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY CIV 2004-463-04BETWEEN SCANNELL HARDY & CO SOLICITORS NOMINEES COMPANY LIMITED Plaintiff AND PETRUS JOHANNES PAALVAST AND MARIA GERTRUDE PAALVAST Defendants AND DENNIS ERIC HARDY AND JOHN ROBERT ORTON Third Parties AND PETER WILLIAM PAALVAST Fourth Party Appearances: (on papers) Judgment: 16 April 2007 at 4.30 pmJUDGMENT OF ASSOCIATE JUDGE J P DOOGUEThis judgment was delivered by me on16.04.07 at 4.30 pm, pursuant to Rule 540(4) of the High Court Rules. Registrar/Deputy Registrar DateOlphert Sandford, Rotorua, Fax 07 347 9297 Scannell Hardy, Hastings - Fax: (06) 876-0275 P W Paalvast, P O Box 1958, Taupo – pierre@win.co.nz[1] In 2004 the plaintiff issued proceedings against the first defendants and second defendant to recover advances that the plaintiff made and which it alleged it was entitled to recover from the first and second defendants. Judgment was sought against the defendants jointly and severally in the sum of $279,023.48. [2] In September 2005 a judicial settlement conference took place. I understand that an amount was agreed to be owing by the defendants to the plaintiff. Subsequently there were disputes as to whether a binding agreement had in fact been arrived at. [3] On 11 th December last year the plaintiff advised me that they did not wish to proceed further because there had been a mortgagee sale which would provide sufficient funds to render the present proceedings unnecessary and that the plaintiff intended to discontinue those proceedings. When the plaintiff attempted to discontinue, the matter of costs had to be confronted. Apparently the plaintiff was able to come to terms with the first defendants. The plaintiff has not however been able to agree the matter of costs with the second defendant. When the matter was dealt with by me on 11 December 2006, the second defendant (who by that stage had become transmuted into the "fourth party") said that he wanted to make submissions because there had been misconduct on the part of the plaintiffs. [4] I directed that the parties were to supply memoranda to the Court on the matter of costs and those memoranda are now to hand. [5] Having read the memoranda, my view is that there should be no order for costs made either way on the discontinuance. The plaintiff's position has been vindicated in that it has successfully exercised the power of the sale contained in its mortgage over the first defendants' property. I also accept that the proceedings were properly commenced against the defendants. In my view the just outcome would be for costs to lie where they fall and I therefore make no order for costs on the plaintiff's discontinuance. _____________ J.P. Doogue Associate Judge