Bayley v Hicks - [2016] NZHC 504

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2009-488-000547 [2016] NZHC 504

BETWEEN
J D BAYLY

Applicant

AND

M AND J A HICKS Respondents

Hearing: On the papers

Appearances:

R B Stewart QC and J K Goodall for Applicant
K T Glover for Respondents

Judgment:

23 March 2016

COSTS JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie
On 23 March 2016 at 4.30pm pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:……………………………….

Solicitors/counsel:
Stafford Klaassen Solicitors/ R B Stewart QC/J K Goodall, Auckland
Paul Gallagher Legal/K T Glover, Auckland

BAYLY v HICKS [2016] NZHC 504 [23 March 2016]

Introduction

[1] I refer to my final judgment dated 16 December 2015.1 I recorded that the Hicks were the successful parties, because they supported the proposal advanced by the Court appointed experts which was ultimately preferred by me, and resisted Mrs Bayly’s alternative proposal. I noted that prima facie the Hicks were entitled to an award of costs and to their reasonable disbursements, and I made provision for the filing of memoranda.

[2] I have now received those memoranda and considered the same. Mr Glover for the Hicks sought leave to file a memorandum in reply. I granted that request and I have taken the memorandum in reply into account as well.

[3] The Hicks seek costs and disbursements totalling $172,153.72 for the period

2009 to 2012 and costs and disbursements of $122,424.03 for the period 2013 to date.

[4] Mrs Bayly resists the Hicks’ application. She argues that costs should lie where they fall, that there has been no successful or unsuccessful party, and that disbursements should not be ordered.

Analysis

[5] Any award of costs is covered by Part 14 of the High Court Rules. While all matters in relation to costs are at the discretion of the Court, that discretion is not unfettered. It is qualified by the specific rules contained in rr 14.2 to 14.10. The discretion is exercisable only in situations not contemplated by the rules, or which are not fairly recognised by them.

[6] It is a general principle that a party who fails with respect to a proceeding should pay costs to the party who succeeds.2

[7] In the present case, the partition at issue between the parties has come before this Court for hearing on two separate occasions.3 First, there was a hearing in

1 Bayly v Hicks [2015] NZHC 3248.
2 Rule 14.2(a).
3 There was also a hearing on 17 March 2015. See at para [20].

Whangarei in July/August 2011. I issued an interim judgment in relation to the matters raised at that hearing on 19 August 2011. There was then a further hearing in November/December 2015, and I issued a final judgment in relation to the partition on 16 December 2015. It is appropriate to consider costs by reference to each decision. I have also considered the period between the interim judgment and the finalisation of the independent experts’ reports.

The interim judgment…

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 Bayley v Hicks

Details

AGLC: Bayley v Hicks [2016] NZHC 504
Case: [2016] NZHC 504
Decision Date: 23 March 2016

CaseChat Overview and Summary

The case of Bayley v Hicks involved a dispute over the partition of land between the parties. The case was heard in the High Court of New Zealand, Whangarei Registry. The Hicks sought an award of costs and disbursements totaling $172,153.72 for the period 2009 to 2012 and $122,424.03 for the period 2013 to date. Mrs. Bayly opposed the Hicks' application, arguing that costs should lie where they fall, that there was no successful or unsuccessful party, and that disbursements should not be ordered.

The court considered the legal principles governing the award of costs, including the general principle that a party who fails with respect to a proceeding should pay costs to the party who succeeds. The court also noted that the discretion to award costs is qualified by specific rules contained in the High Court Rules. The court considered the costs associated with the interim judgment, the steps leading up to that decision, and the period between the interim judgment and the finalization of the independent experts' reports.

In relation to the interim judgment and the steps leading up to it, the court found that neither party was successful or unsuccessful, and that the costs burden should be shared equally. The court also found that the steps taken between the interim judgment and the finalization of the independent experts' reports were for the joint benefit of the parties and that the costs burden of those steps should also be shared equally. However, in relation to the final hearing and the steps taken preparatory to that hearing, the court found that Mrs. Bayly was the unsuccessful party and that it was appropriate to award costs against her in relation to those steps.

The court awarded costs to the Hicks in the sum of $40,363 and disbursements of $14,399.26. The court rejected the Hicks' claim for an uplift in costs, finding that Mrs. Bayly's pursuit of her alternative partition proposal was unreasonable and that she sought to impose an unfair burden on the Hicks. The court also rejected the Hicks' claim for disbursements relating to the costs payable to the independent experts, finding that those costs should be met jointly by the parties.

Orders