Belle v Pearsall - [2023] NZHC 3673

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-2207

[2023] NZHC 3673

UNDER Property Law Act 2007

IN THE MATTER OF

An agreement for sale and purchase of land and the division of the proceeds of sale

BETWEEN

ANTHONY CARL WARREN BELLE

Plaintiff

AND

LEAH ISOBEL PEARSALL

Defendant

Hearing: On the papers

Appearances:

K J Sheehan for Plaintiff

T M Newman for Defendant

Judgment:

13 December 2023

JUDGMENT OF O’GORMAN J

This judgment was delivered by me on 13 December 2023 at 12.30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Kate Sheehan Lawyeres, Auckland Keam Law, Auckland

BELLE v PEARSALL [2023] NZHC 3673 [13 December 2023]

[1] In a judgment dated 9 November 2023, the plaintiff’s application for urgent interim orders was dismissed, on the basis that the High Court does not have jurisdiction. The subject matter falls within the exclusive jurisdiction of the Family Court. The defendant was successful on that issue.

[2] That judgment set a timetable for the parties to file memoranda on costs in the event that they could not agree.

[3] The defendant has filed a memorandum seeking costs in the amount of $4,780 on a 2B basis, in accordance with the High Court Rules 2016, rr 14.1, 14.3 and 14.4. Those costs are made up of three items:

(a)notice of appearance (item 7): 0.2 days = $478;

(b)interlocutory application (item 23) 0.3 days = $717; and

(c)written submissions (item 24): 1.5 days = $3,585.

[4]The plaintiff opposes costs.

(a)The first two items are wrongly claimed when they were not incurred. The application for urgent interim orders was determined before any opposition or defence documents were filed, and the defendant did not file any notice of opposition to the interlocutory application.

(b)For the third item, and if any costs were considered in respect of the first two items, the plaintiff opposes any award of costs and asks for costs to lie where they fall. The plaintiff continues to assert that the defendant’s conduct has been unreasonable and/or in breach of aspects agreed in the settlement negotiations, and that costs will be unnecessarily incurred by commencing proceedings in the Family Court, seeking relief in respect of company issues, and seeking to transfer the matter back to the High Court. The plaintiff relies on

Bradford v Te Hei for its proposal that costs should simply lie where they fall.1

(c)The plaintiff also annexes further settlement negotiation correspondence and says that the plaintiff and/or the company will seek costs for the further steps now being taken, including a claim for increased costs for unreasonable conduct.

[5] The Court has a general discretion to award costs under r 14.1, but r 14.2 provides a clear statement of the principles to be applied in most cases.

(a)Under r 14.2(1)(a), the party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds.

(b)Under r 14.2(1)(b), an…

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 Belle v Pearsall

Details

AGLC: Belle v Pearsall [2023] NZHC 3673
Case: [2023] NZHC 3673
Decision Date: 13 December 2023

CaseChat Overview and Summary

In the case of Belle v Pearsall, the plaintiff, Anthony Carl Warren Belle, sought an award of costs from the defendant, Leah Isobel Pearsall, in the sum of $4,780. This matter was before the High Court of New Zealand, Auckland Registry, on the papers, following an earlier dismissal of the plaintiff's application for urgent interim orders. The primary legal issue the court had to address was whether the defendant was entitled to claim costs for various steps taken in the proceeding, including a notice of appearance, opposition to an interlocutory application, and preparation of written submissions. The court examined the relevant rules and principles under the High Court Rules 2016 and assessed the reasonableness of the time allocated for each step.

The court found that the defendant's costs were validly claimed on a Category 2 band B basis, meaning that the steps taken were of average complexity and required a normal amount of time. The court determined that the defendant was entitled to the time allocated for the appearance at a mentions hearing, the filing of a memorandum for the defendant in opposition to the interlocutory application, and the preparation of written submissions. The court rejected the plaintiff's opposition to the costs claim, noting that the circumstances did not justify any departure from the default position that the party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds. The court held that the defendant's conduct was reasonable given that the jurisdiction issue was raised by the court itself before the defendant was served or required to take any steps.

The court concluded that the defendant was entitled to the costs in the sum of $4,780. The reasoning was based on the principles of the High Court Rules and the specific circumstances of the case, where the defendant's steps were reasonable and necessary in the context of the proceeding. The court did not find the arguments made by the plaintiff regarding the potential for future costs or the reasonableness of the defendant's conduct to be relevant to the current determination of costs.

Orders