Ahuriri v Etheredge - [2016] NZHC 1390

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-000514 [2016] NZHC 1390

UNDER the Property Law Act 2007

IN THE MATTER OF

an application for a division of property in kind among co-owners

BETWEEN

FRANCES ANN AHURIRI AND JOSEPH ISAAC TAHITAHI AND JACOB WIREMU TAHITAHI Plaintiffs

AND

ARINA FRANCES ETHEREDGE Defendant

Hearing: On the papers

Judgment:

24 June 2016

COSTS JUDGMENT OF DUFFY J

Counsel: M J Koppens, Warkworth
D J Taylor, Hamilton

Solicitors: Dyson Smythe and Gladwell Lawyers (B J Lupton), Warkworth
A N McAllen, Hamilton

AHURIRI AND ORS v ETHEREDGE [2016] NZHC 1390 [24 June 2016]

[1] The plaintiffs were successful in their application for a division of property in kind among co-owners. In accordance with the general rule that costs follow the event, the plaintiffs seek an award of costs.1 The proceedings were categorised as being 2B by Christiansen AJ on 5 June 2013. However, the plaintiffs seek increased costs as provided for in r 14.6 of the High Court Rules. In particular, they rely upon r 14.6(3)(b)(ii)(v) and also 14.6(3)(d).

[2] The defendant opposes the application. The defendant contends that the best approach is that costs should lie where they fall as this was a case where the parties needed the assistance of the Court to establish what the partition proposal was to be, and there was no successful party as the ultimate form of the partition differs from that which the plaintiffs sought. The defendant does accept that in terms of disbursements, court hearing costs should be paid for equally. In the alternative, the defendant submits that any costs award to the plaintiffs should be calculated from February 2014 onwards. The defendant is also critical of the way in which the plaintiffs have calculated their costs application.

[3] There were two separate and distinct hearings of this proceeding. The first commenced on 18 November 2013 and ran until 27 November 2013. It was adjourned part heard after a site visit which led to a new proposal (the third option) being considered.2 There was a level of agreement between the parties on the form of the third option. After the adjournment of the hearing, the focus of both parties was on finalising the form of the third option in a way that best met their individual concerns. The second part of the hearing, which resumed on 18 August 2014 and then went for a further day on 2 October 2014, dealt with finalising the third option.

[4] I acknowledge that at the time when the parties moved their attention to the third option, this was done on a without prejudice basis.3 In this regard they were concerned to protect their original proposals should the third option prove to be unacceptable. However, once the third option came into consideration, no-one
sought to return to their original position.

1 Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305.
2 See Ahuriri judgment no 2 at [2] and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ahuriri v Etheredge

Details

AGLC: Ahuriri v Etheredge [2016] NZHC 1390
Case: [2016] NZHC 1390
Decision Date: 24 June 2016

CaseChat Overview and Summary

In the High Court of New Zealand, the plaintiffs, Frances Ann Ahuriri, Joseph Isaac Tahitahi, and Jacob Wiremu Tahitahi, sought a division of property in kind among co-owners against the defendant, Arina Frances Etheredge. The court was tasked with deciding whether the plaintiffs were entitled to an award of costs in accordance with the general rule that costs follow the event. The plaintiffs argued that they were successful in their application and sought increased costs as provided for in r 14.6 of the High Court Rules, specifically r 14.6(3)(b)(ii)(v) and 14.6(3)(d). The defendant opposed the application, contending that costs should lie where they fell as the ultimate form of the partition differed from what the plaintiffs sought. The defendant also criticised the way in which the plaintiffs calculated their costs application.

The court found that the proceedings resulted in a neutral outcome until the first hearing on 27 November 2013. From the resumption of the hearing on 18 August 2014, the plaintiffs were the successful parties. The court noted the defendant's unreasonable stance in attempting to alter her position in order to improve her circumstances. The court concluded that an uplift from scale costs of 20 per cent was appropriate to better reflect the time and effort the plaintiffs undertook to meet the defendant's unreasonable opposition. The plaintiffs were awarded costs of $23,999.40 (scale costs of $19,999.50 uplifted by 20 per cent) and disbursements of $11,149.40.

The court ordered that the plaintiffs were entitled to costs of $23,999.40 and disbursements of $11,149.40 against the defendant. The plaintiffs were also entitled to recover the filing fee for the statement of claim, all hearing fees for the period from February 2014 onwards, and expert witness fees. Hearing fees for the 2013 hearing and earlier were to be shared equally.

Orders