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High Court of New Zealand Decisions |
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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URL: http://www.nzlii.org/nz/cases/NZHC/2005/44.html