SOUTH CANTERBURY FINANCE LIMITED (IN RECEIVERSHIP) V VEGAR & ANOR HC AK CIV 2011-404-001995

SOUTH CANTERBURY FINANCE LIMITED (IN RECEIVERSHIP) V VEGAR & ANOR HC AK CIV 2011- 404-001995 19 April 2011IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV 2011-404-001995IN THE MATTER OF Section 143 of the Land Transfer Act 1952BETWEEN SOUTH CANTERBURY FINANCELIMITED (IN RECEIVERSHIP)ApplicantAND PATRICIA VEGAR AND KEVINFITZGERALDRespondentsHearing: 19 April 2011Counsel: T J G Allan for applicantJudgment: 19 April 2011ORAL COSTS JUDGMENT OF ASSOCIATE JUDGE ABBOTTSolicitors:Grove Darlow & Partners, PO Box 2881, Auckland for applicant[1] This application for removal of a caveat was brought by the applicant asmortgagee of the property. The caveat was lodged to protect an interest claimedunder an agreement for sale and purchase entered into without the applicant'sknowledge, and after registration of its mortgage.[2] Mr Allen informs me that the caveat has been withdrawn, but after theapplicant was put to the cost of having to file the present application. He wishes towithdraw the application, but seeks costs against the respondents on an indemnitybasis. The reason for that request is that the respondents had no prospect ofsustaining the caveat, and this was pointed out to them, in a very detailed letter sentto their solicitors on 17 March 2011. The letter was supported by copies of a numberof authorities which support the applicant's positions.[3] I consider that this is a case which warrants the somewhat exceptional step of awarding indemnity costs against a party issuing a proceeding. Normally parties to litigation should be entitled to bring claims subject to usual rules as to payment of costs in the event that the claims are unsuccessful. In this case, however, I can see no basis on which the respondents might have been able to sustain their caveat, and this view is supported by the letter sent to the respondents by the applicant's solicitorahead of filing of the application together with the authorities that were enclosed.[4] I have also weighed up whether the applicant acted precipitously in filing itsapplication after sending the letter of 17 March 2011. I am satisfied that it did not,and that there was ample time for the respondents to reflect on their position. Theletter was sent on 17 March 2011. It called for removal of the caveat within5 working days and advised that an application for removal would be made if thatdid not occur, and that indemnity costs would be sought. As it happens the presentapplication was not filed until 6 April 2011, nearly three weeks later. Mr Alleninforms me from the bar that the applicant twice agreed to extension of time to allowthe respondents time to consider their position.[5] The applicant has filed an affidavit setting out the costs being sought. Thecosts being sought appear to be twice what would be awarded in any event on a scale2B basis. Nevertheless, I regard the costs sought as reasonable having regard to the usual criteria, including urgency with which caveat applications tend to be addressed.[6] The application is withdrawn. The respondents are to pay the applicant costsin the total sum of $6,220.07.____________________Associate Judge Abbott