Barry v Carlisle - [2017] NZHC 1666

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CIV 2014-406-000005
CIV 2014-406-000019

CIV 2014-406-000020 [2017] NZHC 1666

BETWEEN
LYNDA ROSE BARRY

Plaintiff

AND

FRANCIS CARLISLE Defendant

Hearing: On the Papers

Counsel:

S J Zindel for Plaintiff
M G Locke for Defendant

Judgment:

19 July 2017

COSTS JUDGMENT OF DOBSON J

[1] In High Court proceedings, Mr Carlisle successfully defended a claim by the plaintiff Ms Barry for an interest in Mr Carlisle’s property.1 Following judgment in his favour, Mr Carlisle sought a discharge of a caveat on his property and costs in respect of that judgment and other related proceedings.

[2] On 5 December 2016, by way of minute, I ordered the caveat was to lapse if leave to appeal to the Supreme Court was not obtained by 1 March 2017. Costs, too, were to be determined following the outcome of any leave decision.

[3] An order that the caveat lapse was issued on 7 June 2017. Mr Carlisle now applies for a final order as to costs in this and all related proceedings.

[4] Three proceedings have been initiated in respect of this matter:

1 Barry v Carlisle [2015] NZHC 1554.

BARRY v CARLISLE [2017] NZHC 1666 [19 July 2017]

(a) CIV-2014-406-00020 – Ms Barry’s proceeding under the Property (Relationships) Act 1976, which was discontinued (the PRA proceeding);

(b)CIV-2014-406-000005 – Ms Barry’s proceeding seeking an order to prevent the lapse of a caveat registered against the title to the defendant’s property (the caveat proceeding); and

(c) CIV-2014-406-000019 – Mr Barry’s proceeding seeking specific

performance of a deed (the substantive proceeding).

[5] Costs in the caveat proceeding were reserved on 16 March 2014, pending resolution of the substantive proceeding.2 Costs in the PRA proceeding were adjourned by Associate Judge Matthews on 15 December 2014, also pending resolution of the substantive proceeding.3

[6] Brown J issued judgment in the substantive proceeding in favour of

Mr Carlisle on 6 July 2015. His Honour then issued a costs judgment on

26 November that same year, addressing all three proceedings up to that date.4 In that judgment, his Honour noted Ms Barry was legally aided from 20 March 2015, and thus s 45 of the Legal Services Act 2011 (the Act) prevented Mr Carlisle from obtaining costs in the ordinary way for the entirety of the substantive proceedings. His Honour considered whether exceptional circumstances arose for making a costs order against Ms Barry pursuant to ss 45(2) and (3), and concluded there were not.5

[7] Brown J determined costs for all three proceedings on a 2B basis, as follows:6

(a) the defendant is entitled to costs in the sum of $9,222.50 in the discontinued PRA proceeding;

(b) there is no order for costs in the caveat proceeding;

(c) the defendant is entitled to costs in the sum of $6,690.00 in the specific performance proceeding;

2      See the reference within the table in Barry v Carlisle [2014] NZHC 3209 at [2].
3      Barry v Carlisle [2014] NZHC 3209.
4      Barry v Carlisle

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 Barry v Carlisle

Details

AGLC: Barry v Carlisle [2017] NZHC 1666
Case: [2017] NZHC 1666
Decision Date: 19 July 2017

CaseChat Overview and Summary

In the High Court of New Zealand Blenheim Registry, Mr. Francis Carlisle sought a discharge of a caveat on his property and costs in respect of the proceedings initiated by Ms. Lynda Rose Barry. The matter involved three separate proceedings initiated by Ms. Barry against Mr. Carlisle. The first was a Property (Relationships) Act 1976 proceeding, which was discontinued. The second proceeding sought to prevent the lapse of a caveat registered against Mr. Carlisle’s property title. The third proceeding involved Mr. Barry seeking specific performance of a deed.

The legal issues before the court were whether Mr. Carlisle was entitled to costs in the various proceedings, and if so, the amount of costs to be awarded. The court had to consider the costs implications of Ms. Barry being legally aided, as provided under section 45 of the Legal Services Act 2011, which prevents the awarding of costs against a legally aided party in ordinary circumstances. The court also had to determine the appropriate costs for the enforcement of the caveat lapse order.

The court found that Mr. Carlisle was entitled to costs in the discontinued Property (Relationships) Act 1976 proceeding and the specific performance proceeding, but not in the caveat proceeding. The court followed the previous decision of Brown J, which awarded costs of $9,222.50 in the discontinued proceeding and $6,690.00 in the specific performance proceeding. The court further noted that if Ms. Barry had not been legally aided, Mr. Carlisle would have been entitled to an additional $53,245.00 for the specific performance proceeding. The court ordered that Mr. Carlisle would be entitled to costs for the enforcement of the caveat lapse order, provided Ms. Barry was not legally aided at the relevant time. If she was, then section 45 of the Legal Services Act 2011 would negate her liability for those costs.

Orders