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IMTEK CONSULTANTS LTD V THE DISTRICT REGISTRAR OF LAND AT AUCKLAND & ANOR HC AK CIV 2005-404-2878 [2005] NZHC 44 (15 September 2005)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                                            CIV
2005-404-2878


                  IN THE MATTER OF                    the Land Transfer Act 1952, Section 145
                  
                                   and Section 145A

                  BETWEEN                             IMTEK CONSULTANTS LIMITED
                                                      Applicant

                  AND                                 THE DISTRICT
REGISTRAR OF LAND
                                                      AT AUCKLAND
                                            
         First Respondent

                  AND                                 GEORGIAN PROJECTS LIMITED
                     
                                Second Respondent


Counsel:          SH Barter for Applicant
                  H Jordaan for Second
Respondent

Judgment:         15 September 2005 at 4.30pm


                    JUDGMENT OF ASSOCIATE JUDGE ABBOTT
             
                                 RE COSTS




Solicitors:
Barter & Co, Solicitors, PO Box 197, Albany Village
Bruce Dell Law, PO
Box 14 224 Panmure, Auckland




IMTEK CONSULTANTS LTD V THE DISTRICT REGISTRAR OF LAND AT AUCKLAND & ANOR HC
AK CIV 2005-404-2878
15 September 2005

[1]    On 31 May 2005 the applicant filed an originating application (pursuant to
Section 145A of the Land Transfer
Act 1952) for an order that a caveat not lapse.


[2]    The application had a first hearing on 9 June 2005. An interim order was
made that day that the caveat not lapse pending further order of the Court. The
application was adjourned for a defended hearing
on 15 August 2005. Subsequently
the second respondent filed a notice and affidavits in opposition in accordance with a
timetable
set on 9 June 2005.


[3]    On 5 August 2005 counsel for the applicant filed a memorandum advising
that the caveat in question had
lapsed (due to a failure to advise the District Land
Registrar of the interim order made on 9 June 2005). As a consequence, Associate
Judge Lang on 11 August 2005 vacated the scheduled hearing and dismissed the
application, reserving costs.


[4]    The second respondent
has now sought costs. Counsel for both parties have
filed memoranda. The applicant accepts, in principle, that the second respondent
is
entitled to costs, and that an award based on Category 2B is appropriate. The
applicant disputes the second respondent's entitlement
to specific items of costs
under Schedule 3 of the Rules:


       a)      The claim under item 2 of the schedule as opposed to item
4.13.


       b)      A claim for filing and serving a memorandum in anticipation of the
               mentions hearing.


   
   c)      A claim for sealing the order or judgment.


       d)      Any suggestion that "over scale" costs are appropriate.


[5]    Counsel for the applicant also explained the reason that the interim order was
not filed with the District Land Registrar
(thus negating the purpose of the
application). I accept that it was inadvertent, but not that that alters the incidence of
costs
as between applicant and second respondent.

[6]    I do not accept the applicant's position on item 2 of the schedule. This is
an
originating application. Item 2 clearly applies to notice of opposition to an
originating application. I accept the applicant's
argument, however, on the claim for
filing and serving a memorandum in anticipation of the mentions hearing, and for
sealing the
order or judgment. There is no record of any memorandum having been
filed for the mentions hearing, and there has been no judicial
conference. Given that
the caveat has lapsed, I see no need of sealing of judgment on the dismissal of the
application.


[7]   
I allow the second respondent costs as sought in items 1 and 2 of the schedule
to counsel for the second respondent's memorandum
of 22 August 2005.
Accordingly, I order that the applicant pay the second respondent costs of $3,190 in
respect of this application. If that sum is not paid within seven days the applicant is
also
entitled to the costs of sealing this order, being the further sum of $40 identified
in item 5 of the schedule to counsel's memorandum.


[8]    As neither party has been wholly successful I make no order as to costs on
the application for costs.




             
                         _____________________________
                                         Associate Judge D.H. Abbott



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