FIRST MORTGAGE CUSTODIANS v HERBERT [2022] NZHC 1294

FIRST MORTGAGE CUSTODIANS v HERBERT [2022] NZHC 1294

The Court declined to depart from the established approach of generally not awarding costs to defendants who successfully resist summary judgment, finding the plaintiffs' applications were not irresponsible or inappropriate and reserving costs to be dealt with as costs in the cause.

Citation
[2022] NZHC 1294
Parties
First Plaintiff: FIRST MORTGAGE CUSTODIANS; Second Plaintiff: FIRST MORTGAGE MANAGERS LIMITED; First Defendants: ANTHONY JAMES HERBERT and STEPHEN PETER LUNN as trustees of the Thackery Trust; Second Defendants: ANTHONY JAMES HERBERT and ELIZABETH LILLIAN HERBERT as trustees of the Herbert Pukawa Trust; Third Defendants: ANTHONY JAMES HERBERT, FIONA HERBERT and STEPHEN PETER LUNN as trustees of the A J and F Herbert Family Trust; Fourth Defendants: MALCOLM HERBERT and STEPHEN PETER LUNN as trustees of the Avenue Road Trust; Fifth Defendants: ANTHONY JAMES HERBERT and STEPHEN PETER LUNN as trustees of the Charles Street Trust; Sixth Defendant: MALCOLM HERBERT; Seventh Defendant: ANTHONY JAMES HERBERT; Eighth Defendant: MAH ENTERPRISES (FIJI) LIMITED; Ninth Defendants: MALCOLM HERBERT and STEPHEN PETER LUNN as trustees of the Thorn Place Trust
Court
High Court
Jurisdiction
New Zealand
Judgment Date
2 June 2022
Procedural Posture
Civil Proceeding Concerning Summary Judgment Applications and Mortgage/guarantee Claims / Costs Application Following Dismissal of Summary Judgment Applications; Costs Reserved
Outcome
Costs reserved; no costs orders made
Legal Topics
Summary Judgment, Costs Follow the Event, Reserve Costs, Encouragement of Summary Judgment Applications
Civil Procedure Costs Mortgage Law Equity Summary Judgment Costs Follow the Event Reserve Costs Encouragement of Summary Judgment Applications

Case Brief

Summary, issues, holding and outcome

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Parties

FIRST MORTGAGE CUSTODIANS

First Plaintiff

FIRST MORTGAGE MANAGERS LIMITED

Second Plaintiff

ANTHONY JAMES HERBERT and STEPHEN PETER LUNN as trustees of the Thackery Trust

First Defendants

ANTHONY JAMES HERBERT and ELIZABETH LILLIAN HERBERT as trustees of the Herbert Pukawa Trust

Second Defendants

ANTHONY JAMES HERBERT, FIONA HERBERT and STEPHEN PETER LUNN as trustees of the A J and F Herbert Family Trust

Third Defendants

MALCOLM HERBERT and STEPHEN PETER LUNN as trustees of the Avenue Road Trust

Fourth Defendants

ANTHONY JAMES HERBERT and STEPHEN PETER LUNN as trustees of the Charles Street Trust

Fifth Defendants

MALCOLM HERBERT

Sixth Defendant

ANTHONY JAMES HERBERT

Seventh Defendant

MAH ENTERPRISES (FIJI) LIMITED

Eighth Defendant

MALCOLM HERBERT and STEPHEN PETER LUNN as trustees of the Thorn Place Trust

Ninth Defendants

Procedural Posture

Civil Proceeding Concerning Summary Judgment Applications and Mortgage/guarantee Claims / Costs Application Following Dismissal of Summary Judgment Applications; Costs Reserved

Legal Issues

  1. 1 Whether defendants should be awarded costs for successfully resisting summary judgment
  2. 2 Whether plaintiffs' summary judgment applications were so obviously doomed that costs should be awarded
  3. 3 Whether to depart from the established approach of generally not awarding costs to defendants who successfully resist summary judgment

Ratio Decidendi

The Court declined to depart from the established approach of generally not awarding costs to defendants who successfully resist summary judgment, finding the plaintiffs' applications were not irresponsible or inappropriate and reserving costs to be dealt with as costs in the cause.

Court Disposition

Costs reserved; no costs orders made

Orders

  • No costs orders made in respect of the summary judgment applications
  • Costs reserved as costs in the cause