Barry v Carlisle - [2014] NZHC 3209

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 Defendant

Judgment:

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…

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 [2014] NZHC 3209
Case: [2014] NZHC 3209
Decision Date: 15 December 2014

CaseChat Overview and Summary

In the case of Barry v Carlisle, the High Court of New Zealand was tasked with determining the costs incurred due to the plaintiff, Lynda Rose Barry, discontinuing a proceeding against the defendant, Francis Carlisle. The original proceeding, initially filed in the Family Court, sought a division of relationship property under the Property (Relationships) Act 1976. The parties had a protracted history of cohabitation, but disputed the nature of their relationship, with Barry asserting a de facto relationship and Carlisle maintaining they were merely flatmates. The court was required to decide whether Barry should be ordered to pay costs to Carlisle under Rule 15.23 of the High Court Rules, which generally mandates the plaintiff to pay costs to the defendant upon discontinuance unless otherwise ordered by the court.

The court found that while Barry had discontinued the proceeding, this did not necessarily imply failure on her part, as she had another proceeding ongoing where the relationship between the parties would still be examined. The court considered the reasonableness of both parties' stances, the conduct prior to the commencement of the proceeding, and the reasons for discontinuance. Notably, the court highlighted that it would not consider the merits of the respective cases, except where they were so obvious as to influence the costs issue. Given that Barry had discontinued the proceeding to pursue another, related matter and that the issues between the parties remained unresolved, the court determined that costs should be reserved for consideration in the future proceeding.

The reasoning underscored the principle that discontinuance does not equate to failure, especially when a party discontinues for reasons unrelated to the merits of the case. The court's decision aligned with the precedent set in Powell v Hally Labels Ltd, where the Court of Appeal noted that discontinuance should not necessarily be seen as a failure if a plaintiff succeeds by other means or discontinues for reasons not connected with the merits. Consequently, the court adjourned the application for costs on this proceeding for further consideration when costs are decided in the related proceeding.

Orders