Barry v Carlisle
[2014] NZHC 3209
•15 December 2014
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
CIV-2014-406-000020 [2014] NZHC 3209
BETWEEN LYNDA ROSE BARRY
Plaintiff
AND
FRANCIS CARLISLE Defendant
Hearing: 12 December 2014 (Determined on the papers) Appearances:
S J Zindel for Plaintiff
M G Locke for DefendantJudgment:
15 December 2014
COSTS JUDGMENT OF ASSOCIATE JUDGE MATTHEWS
[1] This proceeding was commenced in the Family Court and transferred to this Court, then discontinued on 4 November 2014. Orders had been sought for division of relationship property on the basis that Ms Barry and Mr Carlisle were in a relationship to which the Property (Relationships) Act 1976 applies.
[2] Rule 15.23 of the High Court Rules provides that unless the Court orders otherwise, a plaintiff who discontinues a proceeding must pay costs to the defendant up to and including the discontinuance.
[3] Mr Carlisle accepts that costs should be assessed on the relevant scale under the District Court Rules.
[4] There is a further proceeding between Ms Barry and Mr Carlisle in which
Ms Barry seeks judgment arising from an agreement the parties entered, in relation to property.
BARRY v CARLISLE [2014] NZHC 3209 [15 December 2014] Costs Judgment
[5] For Mr Carlisle, Mr Locke says that the two proceedings arise out of the same factual background, a long period of cohabitation by the parties in homes owned by Mr Carlisle. However, Ms Barry and Mr Carlisle have opposing views on the nature of their relationship. Ms Barry maintains that for a period of at least the qualifying period under the Property (Relationships) Act, she and Mr Carlisle were in a de facto relationship. Mr Carlisle says otherwise, maintaining that throughout they were just flatmates, apart from a period of around 11 months during 1991 and
1992, until Ms Barry ended that relationship.
[6] Mr Locke maintains, in his submissions, that Ms Barry had no prospect of establishing that she and Mr Carlisle were in a de facto relationship for any longer period. He notes that:
(a) In a police case summary report in February 2002 it is recorded that Mr Carlisle asked for police assistance in serving a trespass notice on Ms Barry.
(b) In a police summary report in April 2002 it is noted that Ms Barry had
complained of an assault by her “flatmate Francis Carlisle”.
(c) In a police case summary report dated 2 December 2009 it is recorded that “Lynda Barry reports a physical domestic at her place. Her partner Francis Carlisle was home with her at the time. Barry reports they live with each other but now considers them no longer in a relationship.”
(d)On records supplied by WINZ from 1998 to 2002, there is no record of Ms Barry having been in a relationship, and Ms Barry was in receipt of the single person rate of benefit rather than the lower rate relating to a person in a relationship.
(e) In a WINZ document dated 20 September 2011 Ms Barry described
Mr Carlisle as her flatmate.
(f) In a WINZ document dated August 2011 Ms Barry records herself as
“single” and says she does not have a partner.
(g)In a WINZ form dated 16 April 2013 she describes Mr Carlisle as her ex partner, and states that they have not been in a “real relationship physically or financially over the years. I was his unofficial carer.”
[7] For Ms Barry, Mr Zindel says that the presumption in favour of an award of costs can be displaced. He relies on Kroma Colour Prints Ltd v Tridonicatco NZ Ltd,1 where the Court said:
The Court is not limited in the factors that can be taken into account when considering whether the presumption is displaced, but the following are matters which are taken into consideration:
(a) As the general rule the Court will not consider the merits of the respective cases (unless they are so obvious that they should influence the costs issue).
(b) The Court will consider the reasonableness of the stance of both parties in the proceeding (whether it was reasonable for the plaintiff to bring and continue the proceeding, and for the defendant to oppose and continue to oppose it, up to the point of discontinuance).
(c) Conduct prior to the commencement of the proceeding may be relevant (for example, if any conduct by a defendant has precipitated the litigation), as may be the reason for discontinuing (for example, where a change of circumstances has made the proceedings unnecessary).
[8] Notwithstanding the principle that the Court should not address the merits, as a general rule, Mr Zindel says that in any event, Mr Carlisle admits to a sexual relationship for a period, the evidence put forward in the Family Court by way of affidavit from witnesses for Mr Carlisle breach rules of evidence and, in certain respects, are manifestly unreliable, and that Ms Barry’s claim cannot be described as lacking merit, that she had good reason to make her claim, and that she only voluntarily discontinued it after commencing her alternative proceeding. The issues between the parties are still essentially “live”, and will be determined in the extant proceeding.
[9] Mr Zindel then refers to a number of cases where courts have expressed the view that costs will not necessarily follow the event in relationship property cases, as there are advantages to both sides in determination of relationship property issues. I
do not find it is necessary to canvass these cases in the circumstances of this case, as
1 Kroma Colour Prints Ltd v Tridonicatco NZ Ltd [2008 NZCA 150.
other indicia give, in my view, a clear direction on the correct outcome of this application.
[10] First, although the documents referred to by Mr Locke in his memorandum were signed during the relationship, they were created in just three years, but the relationship spanned a period of 23 years. It would have been a challenging task for a court to determine on the facts whether there was a qualifying de facto relationship for a sufficient period during that time, and no doubt these documents would have been relevant. However, there would have been a substantial amount of further evidence, particularly from the parties themselves, as well as the deponents who swore affidavits in the proceeding, when it was in the Family Court. There would have been extensive cross-examination and the Court would have made a factual finding after considering what would plainly have been a large volume of evidence.
This underscores the principle referred to in Kroma,2 that as a general rule the Court
will not consider the merits of the respective cases of the parties. I am not prepared to make a finding on the merits of this case on the scant material put before me, a mere fraction of the material that a court would have required in order to properly determine this point.
[11] Secondly, in Powell v Hally Labels Ltd,3 the Court of Appeal reviewed the principles relating to awards of costs following discontinuance. The Court notes that discontinuance should not necessarily be seen as failure where a plaintiff has succeeded by other means, or having discontinued for reasons not connected with the merits. In my view there is sufficient before the Court on this application for this principle to apply. Whilst in the extant proceeding the issue is enforcement of a property agreement, whereas in the discontinued proceeding the principal issue was whether Ms Barry and Mr Carlisle were in a de facto relationship as defined by the Act, in both cases their relationship will come under scrutiny and indeed this is borne out by the fact that Mr Zindel says that the evidence produced in affidavit format for the Family Court will form the basis of the briefs of evidence on the extant proceeding in this court. I am satisfied that it has been established to a sufficient
extent that Ms Barry has discontinued this proceeding for reasons not connected with
2 And also reiterated in Powell, below.
3 Powell v Hally Labels Ltd [2014] NZCA 572.
its merits, as in Powell where Hally Labels Limited had discontinued a claim in the
High Court against Mr Powell while continuing a claim in the Employment Court.
[12] In my opinion the appropriate course is for costs on the discontinuance to be reserved, and to be decided when costs are under consideration in the extant proceeding.
Outcome
[13] The application for costs on this proceeding is adjourned for further consideration when costs are decided on proceeding CIV-2014-406-19, and on a related proceeding, concerning a caveat over a property owned by Mr Carlisle CIV-
2014-406-000005.
[14] Costs on this application are reserved.
J G Matthews
Associate Judge
Solicitors: Zindels, Nelson.
Ludons Law, Blenheim.