Armstrong v Legge

[2019] NZHC 2997

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-002045

[2019] NZHC 2997

BETWEEN

GUY PATRICK ARMSTRONG

Applicant

AND

MARGARET ANN LEGGE

Respondent

Hearing:	[On the Papers]
Counsel:	J M Skinner and E W Davies for the Applicant L J Kearns for the Respondent
Judgment:	18 November 2019

JUDGMENT OF EDWARDS J

This judgment was delivered by me on 18 November 2019 at 12.30 pm pursuant to r 11.5 of the High Court Rules.

Deputy Registrar

Counsel:    L J Kearns, Auckland

Solicitors: Skinners Law, Auckland

ARMSTRONG v LEGGE [2019] NZHC 2997 [18 November 2019]

[1]        This proceeding was resolved by agreement and consent orders were made on 18 October 2019. The only outstanding issue relates to costs.

[2]        The substantive claim related to the sale of a property on Great Barrier Island. The parties agreed to the sale of that property in a relationship property agreement dated 9 February 2011.

[3]        The applicant filed a without notice application seeking leave to commence proceedings by way of originating application on 24 September 2019. The substantive application sought orders under s 339 of the Property Law Act 2007 for the sale of the Great Barrier Island property.

[4]        Although the application was made without notice, it was served on a Pickwick basis. Counsel for the respondent attended a telephone conference before Muir J on 26 September 2019. She informed the Court that her client did not oppose leave and did not oppose the sale of the property. Leave was granted accordingly, and the application was adjourned in anticipation of a joint memorandum seeking consent orders being filed.

[5]        That joint memorandum was subsequently filed, and orders by consent were made by Powell J on 18 October 2019. Directions were made as to costs.

[6]        The applicant seeks indemnity, increased, or alternatively schedule 2B costs for the application. The respondent opposes costs and suggests that they should lie where they fall.

[7]        There is no basis to award indemnity or increased costs in this case. The grounds put forward by the applicant relate to pre-proceeding conduct. As the Court of Appeal said in Paper Reclaim Ltd v Aotearoa International Ltd, generally costs are to reflect how parties have acted during litigation, not before it.1 Similarly, costs should not reflect post-judgment events either.2 Some of the grounds put forward by

1      Paper Reclaim Ltd v Aotearoa International Ltd [2006] 3 NZLR 188 (CA) at [160]; see also Jonesv O’Keeffe [2019] NZCA 222

2      Diagnostic Medlab Ltd v Auckland District Health Board (No 2) HC Auckland CIV-2006-404- 4724, 23 October 2009 per Asher J.

the respondent in support of her claim that no costs order should be made fall into this category.

[8]        The question, therefore, is whether scale costs should be awarded to the applicant in this case. The application was reasonably made. The respondent had refused to take steps to sell the property despite agreeing to do so some years earlier. The respondent ultimately agreed to the relief sought in the application. If she had agreed earlier, then the application would not have been necessary. The applicant is entitled to be reimbursed for the costs of bringing the application in those circumstances.

[9]        On the other hand, the respondent also acted reasonably in immediately consenting to leave and consenting to the relief sought. Those steps saved all parties, and the Court, time and cost in resolving the proceeding expeditiously. The costs of attending the telephone conference before Muir J and the subsequent filing of the joint memorandum seeking consent orders to be made should accordingly lie where they fall.

[10]      Finally, the applicant seeks costs in relation to the costs application. But given the parties have both had a measure of success, the costs of this costs application should lie where they fall.

[11]      In the circumstances, I award costs on a schedule 2B basis for filing the originating application (being items 37 and 40, totalling $,5975) to the applicant, plus disbursements in the sum of $540 for the filing of the originating application.

Edwards J