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Lepionka & Co Investments Limited v Naldapat Limited [2019] NZHC 2679 (17 October 2019)

Last Updated: 29 October 2019

ORAL COSTS JUDGMENT OF ASSOCIATE JUDGE R M BELL

LEPIONKA & CO INVESTMENTS LIMITED v NALDAPAT LIMITED [2019] NZHC 2679 [17 October 2019]

[1] This decision deals with costs following my decision of 27 June 2019 that the caveat by LW354 Ltd be removed and the reasons given in my judgment of 15 July 2019.¹

[2] The applicant, Lepionka & Company Investments Ltd (the “Lepionka mortgagee”) applies for costs against the second respondent, LW354 Ltd, its director, Ms Elizabeth O’Neil, Ms Nadia Dapas, director of Naldapat Ltd, and Mr Vaughan Peter Bowkett, a former director of Naldapat Ltd. The Lepionka mortgagee applies for indemnity costs. For that it claims $45,000 or $28,544. Failing that, it claims scale costs which it calculates at $14,272.

[3] Ms O’Neil, Ms Dapas and Mr Bowkett are all associated with Mr Garth Paterson, who was the man behind the development of the property at Kahuranaki Road, Havelock North. I will refer to Ms O’Neil, Ms Dapas and Mr Bowkett as part of the “Paterson interests”.

[4] The Lepionka mortgagee applied to remove two caveats, one lodged by Naldapat Ltd and the other by LW354 Ltd. Naldapat Ltd removed its caveat before the hearing. I did not order it to pay costs.

[5] LW354 Ltd lodged its caveat claiming it was a successor trustee to GLW Group Ltd, the registered proprietor which owned the property at Kahuranaki Road on trust. I held that it was arguable that GLW Group Ltd did own the property as a trustee; that it had resigned as trustee before it went into liquidation; and Naldapat and later LW354 Ltd were trustees in turn. But those rights as trustee were subject to the prior rights of the Lepionka mortgagee to complete the sales of the subdivided lots. The Lepionka mortgagee’s rights had been strongly contested. That had been upheld by Fitzgerald J’s decision of 14 December 2017.² While GLW Group Ltd appealed against

¹ Lepionka & Co Investments Ltd v Naldapat Ltd [2019] NZHC 1646.

² AFI Management Pty Ltd v Lepionka & Company Investments Ltd [2017] NZHC 3116.

Fitzgerald J’s decision, I held that in light of subsequent events, her decision had become final for all practical purposes. GLW Group Ltd had gone into liquidation. The liquidator settled with the Lepionka mortgagee, and the Lepionka mortgagee bought out the interests of the second mortgagee, AFI Management Pty Ltd. GLW Group Ltd’s appeal against the December 2017 decision was withdrawn and the proceeding in this court was discontinued. The Lepionka mortgagee’s priority under its first registered mortgage prevailed over the interests of GLW Group Ltd and the Paterson interests generally. I also held that the caveat of LW354 Ltd was in breach of an order made by Fitzgerald J in her caveat removal decision of 6 July 2018.³ As well, Ms O’Neil had breached her undertaking to the court not to lodge a caveat without leave of the court. I held that the Lepionka mortgagee was entitled to costs against LW354 Ltd because it had succeeded in its removal application.

[6] The Lepionka mortgagee has applied for costs against non-parties. Ms O’Neil and Ms Dapas have filed notices and affidavits in opposition. Mr Bowkett was served but has taken no steps.

[7] In deciding costs, I do not intend to review my judgment. As part of their opposition, LW354 Ltd and Ms O’Neil have raised matters which suggest that parts of my decision may be in error. LW354 Ltd has lodged an appeal against my decision. Any review of my decision is for the Court of Appeal. Subject to that appeal, my decision stands - for better or worse.

[8] I also assess costs as matters stood at the date of judgment. The Paterson interests complain that the Lepionka mortgagee has not complied with its duties to give an account under s 185 of the Property Law Act 2007. They also raise an issue about how the Lepionka mortgagee dealt with chattels. Those matters are not relevant to a costs decision on an application to remove a caveat.

[9] Under s 148 of the Land Transfer Act 2017, a person who lodges a caveat without reasonable cause is liable to pay compensation to any person suffering loss or damage as a result. The court’s powers to award costs after a successful application

³ GLW Group Ltd v Lepionka & Company Investments Ltd [2018] NZHC 1658.

to remove a caveat under s 142 of the Land Transfer Act are separate. Here, I am dealing only with costs. It is not my role to award damages under s 148.

Scale costs

[10] The Lepionka mortgagee has calculated scale costs under category 2 band B at
$14,272, and it has claimed disbursements of $1,850.09. For LW354 Ltd, Mr Sullivan does not take issue with the calculation of those scale costs and the disbursements claimed. The category and band allocations are appropriate.

[11] There is an issue as to GST and disbursements. The normal rule is that unless a litigant carrying on business advises the court of its GST status, it will be taken to be registered and able to claim its expenses as a GST input.⁴ This means that generally, awards of disbursements will be exclusive of GST to avoid double recovery. The Lepionka mortgagee has not provided any evidence as to its GST status and so the default position will apply. With GST taken out, the disbursements come to
$1,608.77.

LW354 Ltd

[12] The Lepionka mortgagee seeks indemnity costs under r 14.6 of the High Court Rules 2016. It says that under r 14.6(4)(a) LW354 Ltd acted vexatiously, improperly and unnecessarily in taking steps, and under r 14.6(4)(b) it disobeyed an order of the court – that being the order of Fitzgerald J.

[13] While caveats can serve a useful purpose in protecting unregistered interests in land, they may also be misused. Caveats can be lodged against the title to land relatively quickly and efficiently, but they can be hard to take off without the consent of the caveator. As such, they are an attractive tool for a defaulting mortgagor to stymie a mortgagee’s attempts to sell the property. This misuse of caveats is not uncommon. The courts need to make it clear that the misuse of caveats is not to be encouraged.

4. New Zealand Venue and Event Management Ltd v Worldwide NZ LLC [2016] NZCA 282 at [12], [16], and [17].

[14] This case is a classic for the misuse of a caveat to delay a sale by a mortgagee. The mortgagee’s rights to sell the property had already been litigated exhaustively, and the mortgagee’s position had been broadly vindicated. Fitzgerald J had found that notwithstanding some inequitable conduct on the part of the mortgagee, it had the right to sell the property as mortgagee. The appeal against her decision had been withdrawn and the liquidator discontinued the proceeding in this court. The mortgagee had obvious priority, notwithstanding the claim to a caveatable interest on the ground that GLW Group Ltd had been a trustee and the trusteeship had, in turn, passed to LW354 Ltd. In my judgment, the real purpose of lodging the caveat was to stall the sale of the property. That was egregious because the mortgagee’s right to sell the property had accrued in 2015. In addition to extensive litigation, attempts to sell the property had been frustrated by caveats lodged against the title. My decision recorded that this was the seventh.⁵ All but two of the caveats had been lodged by the Paterson interests. None of the Paterson caveats have been upheld.

[15] Fitzgerald J’s decision in July 2018 should have put the matter to rest.⁶ In that decision, she made orders barring Mr Paterson and GLW Group Ltd from lodging a caveat. Ms O’Neil and Ms Dapas gave undertakings not to lodge caveats without first leave of the court. GLW Group Ltd consented to the order barring it from lodging a caveat without first obtaining leave of the court. That order bound LW354 Ltd as a privy, because it was a successor in title to GLW Group Ltd. But, notwithstanding that order, LW354 Ltd did not seek leave of the court before lodging its caveat. The purpose of barring the lodging of caveats without leave was to avoid delays in settlement and proceedings to decide the merits of a caveat. LW354 Ltd’s caveat caused the trouble which Fitzgerald J had been anxious to avoid. The caveat was put on deliberately.

[16] Mr Sullivan explains that when the caveat was lodged there was an attempt to negotiate terms with the mortgagee to try to hold the mortgagee to undertakings to preserve the position of GLW Group Ltd while appeal rights were pursued. Even if

⁵ Lepionka & Co Investments Ltd v Naldapat Ltd [2019] NZHC 1646 at [22].

⁶ GLW Group Ltd v Lepionka & Company Investments Ltd [2018] NZHC 1658.

that is so, the lodging of the caveat was an attempt to push open a door which had already been firmly closed.

[17] In March 2019, the Lepionka mortgagee’s lawyers wrote to LW354 Ltd, pointing out the invalidity of the caveat and advising that proceedings would be issued. Despite that warning, LW354 Ltd did not remove the caveat but put the mortgagee to the trouble and cost of the application for removal. I have little difficulty in finding that the requirements for indemnity costs under r 14.6(4)(b) have been made out.

[18] Mr Sullivan pointed out that the Lepionka mortgagee would be able to charge its costs for removing the caveat against the proceeds of sale and he therefore queried the need for an order for costs. To a certain extent, he has a point. The costs of sale incurred by a mortgagee take first priority.⁷ The costs incurred in getting rid of the caveat are part of the Lepionka mortgagee’s costs incurred in realising its securities. Nevertheless, it is appropriate to make a costs order, notwithstanding the mortgagee’s rights of recovery under s 185. The order for costs serves as a vindication for the Lepionka mortgagee in showing that it was entitled to apply for the caveat to be removed and the costs order will also serve as a benchmark in considering the mortgagee’s application for costs against non-parties.

The amount of costs

[19] The Lepionka mortgagee says that its actual costs on an application to remove the caveats was $91,409.50. Its application seeks indemnity costs of $45,000. In a minute of 12 September 2019, I indicated that a party seeking indemnity costs had to provide information to show that those costs were reasonable. At that stage it had not provided any such information. I said that in the absence of that information I would not consider the claim for indemnity costs. The mortgagee filed a memorandum on 20 September 2019 showing the steps taken, narrations for each step, the actual costs claimed, and the amounts sought for each step for indemnity costs. It has shown the total amounts charged by the solicitors and by counsel. It has shown the hourly rates, and the hours spent on the job by each lawyer. In providing that information, it was

⁷ Property Law Act 2007, ss 185(1)(a) and 2(d).

following what had been done before Harrison J in Bradbury v Westpac Banking Corporation.⁸

[20] In submissions, Mr Sullivan said the claim was obviously excessive. He said the case did not justify second counsel. No invoices had been provided. He submitted that extensive time had been spent on the job. One example he took was that the client had been charged $3,608.50 for drafting and filing an affidavit as to the appropriate registry of the court in which to file the application. In its memorandum, the mortgagee sought $1,753 for that step. But even that seems high.

[21] The mortgagee is required to lay a proper evidential foundation for a claim for indemnity costs. In Crown Money Corporation Ltd v Grasmere Estate Trustco Ltd, Associate Judge Faire set out the kind of information required.⁹ He made the point that there must be evidence, that is, submissions alone are not adequate. I would expect invoices to be provided plus time records to show time spent on the job and persuasive evidence that the charges are reasonable for the work carried out.

[22] In the absence of that evidence, the Lepionka mortgagee proposes that I adopt
$45,000 as a reasonable amount. That is similar to an approach I took in Black v ASB Bank Ltd.¹⁰ But the Court of Appeal did not consider that that was best practice.¹¹ As the Court of Appeal was kind enough to offer its advice, I would be churlish not to accept it.

[23] Failing that, the mortgagee says that I should award a 100 per cent increase, as an amount likely to be acceptable. Again, that seems to suffer the same problem which the Court of Appeal found unacceptable in Black v ASB Bank Ltd.

[24] In that case the Court of Appeal indicated three ways by which the reasonableness of indemnity costs could be assessed if the party liable to pay the indemnity costs seeks a detailed scrutiny of those costs for reasonableness:¹²

⁸ Bradbury v Westpac Banking Corporation [2008] NZHC 751; (2008) 18 PRNZ 859 (HC).

⁹ Crown Money Corporation Ltd v Grasmere Estate Trustco Ltd [2008] NZHC 1816; (2008) 19 PRNZ 591 (HC) at [14].

¹⁰ Black v ASB Bank Ltd HC Auckland CIV-2010-404-3252, 30 September 2011.

¹¹ Black v ASB Bank Ltd [2012] NZCA 384 at [74]- [75].

¹² At [82]-[84].

(a) the liable party could obtain taxation of costs by the Registrar under Part 14 of the High Court Rules.

(b) The parties could agree to be bound by the decision of a suitably qualified practitioner which would be referred to the Court to formalise the order; or

(c) By referring the fees to the Law Society.

[25] In a more recent decision, Edel Metals Group Ltd v Geier Ltd the Court of Appeal stated that those alternatives are not necessarily appropriate.¹³ The Court did not consider that the Registrar was the appropriate person to decide costs in that case. The costs sought were in the order of $900,000. The Law Society will no longer undertake a revision where the person challenging the fees is not the party chargeable. In Edel, the Court referred the matter back to this court for a Judge to decide.

[26] I am not confident that taxation by the Registrar would be appropriate for this case, given the unusual features of this proceeding. The default position is that it is left for me to decide. The mortgagee has been on notice that it was required to provide proper proof of the fees to establish their reasonableness. From the material provided, I am unable to make that assessment. Even having regard to the information provided in the memorandum, I am unable to assess the reasonableness of the fees in terms of charge-out rates and time spent on the job. If I were to try to reconstruct what ought properly to be charged, I would be at a loss.

[27] Accordingly, I am unable to fix indemnity costs. The matter reverts to becoming a case for increased costs under r 14.6(3) of the High Court Rules. The case qualifies for increased costs because indemnity costs are justified.

[28] Scale costs are fixed at two-thirds of what are understood to be the reasonable costs of a practitioner, given the category allocation and the time allocations under the scales. In this case, that means that to apply an indemnity approach to increased costs

¹³ Edel Metals Group Ltd v Geier Ltd [2018] NZCA 494.

there should be a 50 per cent increase. Accordingly, I fix the costs payable by LW354 Ltd at scale plus a 50 per cent increase: $21,308.00 with disbursements of $1,608.77.

Ms O’Neil

[29] The Lepionka mortgagee seeks costs against Ms O’Neil as a non-party. She is the sole director and shareholder of LW354 Ltd. She was also the director of GLW Group Ltd. She gave an undertaking to the court not to lodge a caveat without first seeking leave of the court. I held that she breached that undertaking. The Lepionka mortgagee warned her about her liability for costs and damages if she did not withdraw the caveat. She continued to insist on her right to caveat and, even now, appears to maintain that she was entitled to do so.

[30] In Dymocks Franchise Systems (NSW) Pty Ltd v Todd (No.2), the Privy Council stated in general terms the principles for ordering costs against non-parties:¹⁴

1. Although costs orders against non-parties are to be regarded as “exceptional”, exceptional in this context means no more than outside the ordinary run of cases where parties pursue or defend claims for their own benefit and at their own expense. The ultimate question in any such “exceptional” case is whether in ordinary circumstances it is just to make the order. It must be recognised that this is inevitable to some extent a fact-specific jurisdiction and that there will often be a number of different considerations in play, some militating in favour of an order, and some against.

2. Generally speaking the discretion will not be exercised against “pure funders” described as ... “those with no personal interest in the litigation, who do not stand to benefit from it, and are not funding it as a matter of business and in no way seek to control its course”. ...

3. Where, however, the non-party not merely funds the proceedings but substantially also controls or at any rate is to benefit from them, justice will ordinarily require that, if the proceedings fail, he will pay the successful party’s costs. The non-party in these cases are not so much facilitating access to justice by the party funded as himself gaining access to justice for his own purposes. He himself is “the real party” in the litigation, a concept repeatedly invoked throughout the jurisprudence. ...

4. Perhaps the most difficult cases are those in which non-parties fund receivers or liquidators (or, indeed, financially insecure companies generally) in litigation designed to advance the funder’s own financial interest. ...

14. Dymocks Franchise Systems (NSW) Pty Ltd v Todd (No.2) [2004] UKPC 39, [2005] 1 NZLR 145 at [5].

And:

[29] In the light of these authorities, their Lordships were told that, generally speaking, where a non-party promotes and funds proceedings by an insolvent company solely or substantially for his own financial benefit, he should be liable for the costs if his claim or defence or appeal fails. As explained in the cases, however, that is not to say that orders will invariably be made in such cases, particularly, say, where the non-party is himself a director or liquidator who can realistically be regarded as acting rather in the interests of the company (more especially with shareholders and creditors) than in his own interests.

[31] In applications for costs against non-parties, care is required with claims for costs against company directors. In Metalloy Supplies Ltd v MA (UK) Ltd Millett LJ said:¹⁵

The Court has a discretion to make a costs order against a non-party. Such an order is, however, exceptional, since it is rarely appropriate. It may also be made in a wide variety of circumstances where the third party is considered to be the real party interested in the outcome of the suit. It may also be made where the third party has been responsible for bringing the proceedings, and they have been brought in bad faith or for an ulterior purpose or there is some other conduct on his part which makes it just and reasonable to make the order against him. It is not, however, sufficient to render a director liable for costs that he was a director of the company and caused it to bring or defend proceedings which he funded and which ultimately failed. Where such proceedings are brought bona fide and for the benefit of the company, the company is the real plaintiff. If in such a case an order for costs could be made against a director in the absence of some impropriety or bad faith on his part, the doctrine of the separate liability of the company would be eroded and the principle that such orders should be exceptional would be nullified.

[32] In Kidd v Equity Realty (1995) Ltd our Court of Appeal said:¹⁶

[20] Where a company litigant was insolvent at the time of the litigation, a court may well be easily persuaded that its directors were acting for their own purposes rather than those of the company and its creditors. If so, the court will conclude that they therefore were the “real parties” and ought to pay costs accordingly. The same conclusion is likely to be reached where those promoting litigation have sought to take advantage of the insolvency of the company by taking, either expressly or by implication, a “heads I win, tails you lose” approach. In circumstances where the claim was speculative and/or devoid of merit, the court may well conclude that this was the approach of the director or directors concerned. But, and in respectful disagreement with the judgment of Morgan J, we consider that the sort of circumstances which are routinely present when closely held companies litigate do not in themselves warrant an order for costs against those who control them.

¹⁵ Metalloy Supplies Ltd v MA (UK) Ltd [1996] EWCA Civ 671; [1997] 1 WLR 1613 (CA) at 1620.

¹⁶ Kidd v Equity Realty (1995) Ltd [2010] NZCA 452 at [20].

In the Botany Downs Secondary College litigation, Downs J said:¹⁷

[43] As observed at the outset, costs against non-parties are exceptional.¹⁸ This is especially true of pure funders.¹⁹ If a non-party funds a case and controls or benefits from it, “justice will ordinarily require” they pay costs.²⁰ This because he, she or it is regarded as the “real party”.²¹ New Zealand cases emphasise the need for “something more” by the non-party, otherwise the rule could be overbroad in an economy populated by smaller, closely held companies, especially when a director (and owner) uses her or his own capital to fund litigation their insolvent company could not otherwise conduct.²² The “something other” element is not closed. Impropriety suffices but is unnecessary.

[33] Notwithstanding that caution about ordering costs against directors, I am satisfied that Ms O’Neil should pay costs because her conduct was improper under the principles for costs orders against non-parties. She had no right to lodge the caveat. She had given the court an undertaking not to lodge the caveat except with leave of the court. That undertaking included not lodging a caveat as director of a company. As LW354 Ltd’s sole director, she was in clear breach of her undertaking. The breach of the undertaking was a contempt of court.

[34] In cases where a party to a proceeding is subject to civil contempt applications for breach of a court order, it is common to order the person in breach to pay indemnity costs. Ms O’Neil could have been under no illusion as to her potential liability for costs. She had been involved in another unsuccessful caveat, that lodged by Horseshoe Bend Hawke’s Bay Ltd. Associate Judge Sargisson ordered her to pay increased costs under a non-party costs order.²³ Likewise, I order her to pay costs as a non-party, for the same amount as I have ordered LW354 Ltd to pay costs.

17. Minister of Education v H Construction (North Island) Ltd [2019] NZHC 1459 at [43]; (2019) 24 PRNZ 549.
18. Dymocks Franchise Systems (NSW) Pty Ltd v Todd (No 2) [2004] UKPC 39, [2005] 1 NZLR 145 at [25](1).

¹⁹ At [25](2).

²⁰ At [25](3).

²¹ At [25](3).

²² Kidd v Equity Realty (1995) Ltd [2010] NZCA 452 at [14]–[20].

²³ Lepionka and Company Investments Ltd v Horseshoe Bend Hawkes Bay Ltd [2017] NZHC 1482.

Ms Dapas

[35] Ms Dapas is the sole shareholder and director of Naldapat Ltd. Shortly after the company was incorporated, she appointed Mr Bowkett a director of the company. His directorship was short, from 9 November 2018 to 3 December 2018 when he resigned, but in that time he signed the caveat. The evidence does not show any further conduct on the part of Mr Bowkett. He was not a director when the Lepionka mortgagee applied to remove the caveat. Ms Dapas was the sole director and she therefore managed how Naldapat ran its case.

[36] At the hearing on 27 June 2019, counsel for the Lepionka mortgagee advised that its solicitors had written to Naldapat indicating that if the caveat were withdrawn it would not seek costs. The caveat had been withdrawn by that stage. In light of that, I declined to make an order for costs against Naldapat Ltd. After the hearing, however, the Lepionka mortgagee stated that that was an error. It had advised the caveators that it would not seek costs if both caveators withdrew their caveats. Notwithstanding that, it did not ask me to review my costs order but reserved its rights to apply for costs against Ms Dapas. It has calculated scale costs against Ms Dapas at $6,913.

[37] Ms Dapas also gave an undertaking not to lodge a caveat without leave of the court. She was a director of Naldapat Ltd and it had lodged the caveat, even though she did not personally sign the caveat. It is inconceivable that the company would have lodged the caveat without her authority as a director. She is accordingly in contempt of court in breaching her undertaking by being involved in lodging Naldapat’s caveat without first having obtained leave.

[38] The costs remain in the discretion of the court. Obviously, the letter from the mortgagee’s lawyers had some impact because Ms Dapas withdrew her caveat as a result. Her position is not the same as Ms O’Neil, who elected to maintain the caveat for LW354 Ltd. In other words, it would not be appropriate to treat Ms Dapas and Ms O’Neil equally.

[39] While she was in contempt of court in being involved in lodging the caveat, she brought that to an end by having the company withdraw the caveat. It can be
appropriate to offer some carrot to encourage compliance with court orders. Weighing matters up, while I do not approve of the caveat having been lodged in the first place, I do not regard her conduct as so extraordinary that costs ought to be awarded against her. In other words, her belated change of mind is enough to save her from a costs order. `

Mr Bowkett

[40] Mr Bowkett signed the caveat but took no part in the proceeding. He had resigned as a director. He has taken no steps in opposition to the application for non- party costs. I am still required to decide whether he should be liable for costs.

[41] The Lepionka mortgagee said that he was involved in a contempt of court because he aided and abetted Ms Dapas in breaching her undertaking to the court. It said that he was director for only a short period and he signed the caveat during that time. But for Mr Bowkett to be treated as having aided and abetted the breach of the undertaking, it is necessary to show that he had knowledge of the undertaking. Mr Colson invited me to infer that knowledge. To hold someone in contempt of court for breach of an undertaking or breach of a court order, it is necessary to find proof of actual knowledge amounting to a guilty mind. That evidence is missing here.

[42] Mr Bowkett took no role in the proceeding. In most cases where non-party costs are sought, the non-party is alleged to have had some role in the proceeding, even though it may be from behind the scenes. It is not clear to me that I can treat Mr Bowkett as having had some knowledge of the undertaking, even though he did lodge the caveat, or as having taken some part in the proceeding.

[43] I come back to a point I made at the start. There may be liability under s 148 of the Land Transfer Act for lodging a caveat without reasonable cause. But I am required to decide costs, a separate matter. In my judgment, Mr Bowkett has not involved himself in the removal proceeding to an extent that could expose him to liability for costs as a non-party. Accordingly, I decline to make any order for costs against him.

Outcome

[44] To sum up, I make orders for costs against LW354 Ltd and Elizabeth O’Neil for $21,308 plus disbursements of $1,608.77.

[45] I make no orders for costs against Ms Dapas or Mr Bowkett.

[46] The orders for costs payable by LW354 Ltd and Ms O’Neil are enforceable against them jointly and severally.



.....................................

Associate Judge R M Bell

Solicitors:

Bell Gully (Sarah Leslie), Wellington, for the Applicant

WCM Legal (Michael G Bale), Wellington, for the Second Respondents

Copy for:

Mark O’Brien QC, Wellington, for the Applicant

Michael G Colson, Stout Street Chambers, Wellington, for the Applicant

Kevin P Sullivan, Port Nicholson Chambers, Wellington, or the Second Respondent

And non-parties:

Elizabeth O’Neil, 500 Glenmore Road, Edgecliffe, NSW 2027, Australia (non-party_ Nadia Dapas, Australia (non-party)