England v Yee [2013] NZHC 1801 (17 July 2013)

Last Updated: 31 October 2013

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-006079 [2013] NZHC 1801

BETWEEN	PETER MICHAEL ENGLAND Plaintiff
AND	JAMES YEE Defendant

Hearing: On papers

Judgment: 17 July 2013

FINAL JUDGMENT OF ASSOCIATE JUDGE SARGISSON

This judgment was delivered by me on 17 July 2013 at 11.30 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date ..........................

PETER MICHAEL ENGLAND v JAMES YEE [2013] NZHC 1801 [17 July 2013]

[1] On 2 July 2013 I issued an interim judgment in which I made orders as follows:

1. I enter judgment in the sum of $730,000 being the total amount owing on the debt and the capitalized interest.

2. Counsel are to file a joint memorandum or (failing consensus they are to file and serve separate memoranda) on the outstanding issue of interest within 5 working days of this interim judgment.

100. Costs are reserved in the meantime. If the parties are unable to agree on costs then they are to set out their respective positions briefly by way of memoranda, also to be filed within the same 5 working day period.

[2] In this judgment I deal with the outstanding issues as to interest and costs.

Interest

[3] Counsel for Mr Yee advises by memorandum that Mr Yee accepts that statutory interest is payable on the amount of $560,000 as from 31 August 2012. Accordingly, I make an order that interest on the principal sum of $560,000 is payable pursuant to s 87 of the Judicature Act 1908 for the period between 31 August 2012 and the date of this final judgment. If there is any dispute as to the amount the matter may be raised by memorandum on 2 days notice. Leave is reserved for that purpose.

Costs

[4] There is no dispute that if costs are awarded to Mr England they should be calculated under the High Court costs regime on a 2B basis plus disbursements and that the total entitlement would be $17,101.20 inclusive of disbursements. However, counsel for Mr Yee submits that costs should lie where they fall. Counsel relies on the following reasons:

1. The debt became due and payable in the event of either the sale of the property or the death of the borrower.

2. The property at 21a London Street is now subject to an unconditional sale and purchase agreement with settlement to occur on 2 August 2013.

100. The borrower had made numerous attempts to sell the property prior to the commencement of the litigation, which could have been avoided if the lender had been prepared to wait the sale of the property, in respect of which some complex cross-lease arrangements had impeded a quick sale.

[5] Counsel for Mr England rejects the submission that costs should lie where they fall. He submits that the evidence indicates that Mr Yee did not sell because he wanted more for the property. He also points out that in terms of the unconditional agreement that Mr Yee has entered into, there is a provision entitling Mr Yee to cancel if the deposit has not been paid and he asserts that no deposit has yet been paid. He submits:

7. The plaintiff has today received a copy of an unconditional agreement for sale of the London Street property which is for settlement on 2 august 2013. The agreement is dated yesterday. No deposit has yet been paid. There is a provision entitling the defendant as vendor to cancel if it is not paid. There is an expectation (as well as an obligation arising from the mortgage), but not a certainty, that the plaintiff will receive payment from the proceeds of sale. That agreement is not a reason why the plaintiff should not be entitled to costs.

[6] Accordingly, he seeks an award of $17,151.20.

Decision

[7] There is no dispute as to the calculation of costs and disbursements. The only dispute relates to whether or not scale costs and disbursements should be ordered or whether there should be an order that costs lie where they fall.

[8] I am satisfied that there should be an order for costs. Under the statutory costs regime costs are to follow the event unless there is good reason to order otherwise. I am not satisfied that there is good reason to depart from the statutory presumption. Mr Yee relies on problems relating to the cross lease arrangements of the property to essentially revisit findings I have made on the question of what was reasonable time for sale and payment. The opportunity to raise those matters has passed. Accordingly, I make an order for costs against the defendant in favour of the plaintiff in the sum of $17,151.20.

Amendment to judgment sum

[9] Counsel for the plaintiff has responsibly drawn to my attention that Mr Yee has paid Mr England a further sum of $10,000. He notes:

9. Finally, on 24 May 2013 (after the hearing, but before judgment) the defendant paid to the plaintiff a further sum of $10,000. Instead of the amount in paragraph 62(a) of the interim judgment, he seeks the entry of judgment on the same date of 2 July 2013 for $720,000.

[10] Accordingly, I recall my earlier order entering judgment in the sum of

$730,000 and now make an order entering judgment in the sum of $720,000 being total sum owing on the debt and the capitalised interest.

[11] This judgment stands as a final judgment in this proceeding. All matters are at an end accordingly.

Associate Judge Sargisson