Bamber v Official Assignee - [2024] NZHC 449

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2022-463-77

[2024] NZHC 449

WĀHANGA UNDER Section 414(1) of the Insolvency Act 2006

MŌ TE TAKE

IN THE MATTER

of the reserved judgment of District Court Judge RLB Spear dated 27 July 2022

I WAENGA IA BETWEEN

KATHLEEN MATA BAMBER and BRUCE ANDERSON

Ngā Kaipira Appellants

ME AND

THE OFFICIAL ASSIGNEE

Te Kaiurupare Respondent

Nohoanga Hearing: 21 February 2023

Kanohi kitea Appearances:

C B Hirschfeld for the Appellants RMG Hindriksen for the Respondent

Whakataunga Judgment:

6 March 2024

TE WHAKATAUNGA Ā KAIWHAKAWĀ MĀTĀMUA HARVEY

Costs Judgment of Harvey J

This judgment is delivered by me on 6 March 2024 at 3 pm pursuant to r 11.5 of the High Court Rules.

.....................................................
Registrar / Deputy Registrar

Solicitors:
Foster Milroy, Hamilton Meredith Connell, Auckland

Counsel:
C Hirschfeld, Barrister, Auckland

BAMBER v THE OFFICIAL ASSIGNEE [2024] NZHC 449 [6 March 2024]

Introduction

[1] On 23 February 2023, I heard an appeal by Kathleen Bamber and Bruce Anderson (the Bambers) against a decision of the District Court under s 152 of the Insolvency Act 2006 granting an order for possession. The property in question is their whānau home at Ōwhata, Rotorua. The Bambers were unsuccessful. Both counsel filed submissions on costs. Unfortunately, for reasons that remain unclear, this outstanding matter of costs had not been disposed of until now. The delay in issuing this judgment is therefore regretted.

Background

[2] The background and issues to that appeal can be found in the substantive judgment.1 In summary, Mr and Mrs Bamber have been embroiled in lengthy and complex litigation before the Māori Land Court and Māori Appellate Court for many years in a dispute involving the trustees of Māori freehold land near Reporoa.

[3] Ultimately, the Bambers were found liable to the trust for, inter alia, unpaid rent in breach of the lease of the trust’s land.2 They then appealed but that too was unsuccessful.3

Legal principles

[4] It is well settled that any award of costs are at the discretion of the Court.4 This discretion is to be guided by the general principles in rr 14.2 to 14.5 of the High Court Rules 2016. Rule 14.2(1) provides that the party who failed with respect to a proceeding should generally pay the costs of the successful party. The rules are intended to create a framework for determining costs in individual cases that is both

1 Bamber v Official Assignee [2023] NZHC 260, [2023] 2 NZLR 636.
2 Monschau v Bamber — Tahorakuri A No 1 Section 33A2 (2015) 125 Waiariki MB 260 (125 WAR 260).
3 Monschau v Bamber — Tahorakuri A No 1 Section 33A2 (2017) 157 Waiariki MB 173 (157 WAR 173); Bamber v Monschau — Tahorakuri A No 1 Section 33A2 (2019) 218 Waiariki MB 292 (218 WAR 292); and Bamber — Tahorakuri A No 1 Section 33A2 (2021) 259 Waiariki MB 274 (259 WAR 274).
4 High Court Rules 2016,…

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 Bamber v Official Assignee

Details

AGLC: Bamber v Official Assignee [2024] NZHC 449
Case: [2024] NZHC 449
Decision Date: 6 March 2024

CaseChat Overview and Summary

In the High Court of New Zealand, Rotorua Registry, Kathleen Mata Bamber and Bruce Anderson appealed a decision of the District Court that granted an order for possession of their home in Ōwhata, Rotorua. The Official Assignee, acting on behalf of the Bambers' creditors, was the respondent in the case. The Bambers had been involved in a protracted legal battle over the use of Māori freehold land near Reporoa, and had lost their lease, claims against the trustees, and financial standing. They had also lost their home in this case. The court was required to decide whether the Official Assignee should be awarded costs as the prevailing party, considering the Bambers' financial and personal circumstances.

The court considered the general principles for awarding costs, as outlined in the High Court Rules 2016, and the specific circumstances of the case. The court found that while the Bambers had prolonged the proceedings unnecessarily, they were elderly, ill, bankrupt, and pensioners, and there was no practical purpose in adding to their debt by awarding costs against their estate. The court considered that awarding costs in this case would be unduly harsh and unjust, and therefore declined to award costs to the Official Assignee.

The court's decision was based on the particular circumstances of the case, and the Bambers' financial and personal circumstances. The court found that awarding costs in this case would be unduly harsh and unjust, and therefore declined to award costs to the Official Assignee. The court's decision was based on the particular circumstances of the case, and the Bambers' financial and personal circumstances.

Orders