Billington v Morton
[2018] NZHC 3084
•26 November 2018
NOTE: PURSUANT TO S 169 OF THE FAMILY PROCEEDINGS ACT 1980, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE
NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B,
11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-751
[2018] NZHC 3084
IN THE MATTER Of the Family Proceedings Act 1980 and the Property (Relationships) Act 1976 BETWEEN
MALCOLM HAROLD BILLINGTON
Appellant
AND
DEBRA CHARLOTTE MORTON
First Respondent
AND
WILSON McKAY TRUSTEE COMPANY LIMITED
Second Respondent
Hearing: 21 November 2018 Appearances:
M H Billington (self-represented) K E Swadling for First Respondent
Judgment:
26 November 2018
JUDGMENT OF NICHOLAS DAVIDSON J (RECALL OF JUDGMENT)
BILLINGTON v MORTON ANOR [2018] NZHC 3084 [26 November 2018]
A. INTRODUCTION
[1] This judgment is given on Mr Billington’s application for recall (or review) of my judgment of 28 September 2018.1
[2] That judgment was given on appeal against a costs judgment of the Family Court whereby Mr Billington was ordered to pay costs of $50,000.00. That was after the substantive judgment of the Family Court had been taken on appeal to the High Court but settled as recorded in the Minute of Muir J dated 7 December 2017.
[3] On appeal, I upheld the costs judgment of the Family Court, including an uplift, and declined to grant leave for the cross-appeal as sought on behalf of the first respondent. Costs on the costs appeal were reserved and are for this judgment.
B. APPLICATION FOR RECALL
[4] Mr Billington now represents himself, advised by memorandum as to change of representation dated 11 October 2018. He was represented by counsel at the costs appeal.
Background to application
[5] His application for recall (as I will treat it, rather than ‘review’) is based on his contention that a submission in support of the costs appeal was filed by his then counsel without his approval. He says that when he saw it on 13 September 2018, he did not think it was complete, so prepared a supplementary submission dated 18 September 2018 which he expected to be filed prior to the hearing. The supplementary submission is six pages in length, with attachments.
[6] Because the judgment for which recall is sought makes no express reference to this supplementary submission, Mr Billington takes it that I was not provided with the “most significant facts” and he refers to para [55] of my judgment which states:
[55] I can find nothing in the settlement to demonstrate that the parties mutually recognised, or should be taken to have accepted, that there was something about the judgment that was wrong. Mr Billington plainly believes
1 Billington v Morton [2018] NZHC 2530.
that the settlement tempered the judgment, but it is another thing to say that it reflects on the merits of the judgment so as to bear on costs. I cannot find anything to that effect. In principle therefore, Mr Mitchell is right that if a settlement can be dissected so as to bear directly on the merits of the judgment and the ‘success’ of the parties, then that should be brought to account, but I do not find anything to that effect here.
[7] In the supplementary submission, which I have read, Mr Billington sets out why the substantive judgment of the Family Court was wrong, including that the first respondent’s “relationship property claim” made under s 182 of the Family Proceedings Act 1980 (“FPA”) was ‘res judicata’, as a ‘claim’ had been made in the High Court under the Trustee Act 1956 which was “heard and settled at a substantive hearing on 14 March 2016”. There is more to Mr Billington’s argument to which I refer below.
Minute of 26 October 2018
[8] Before the hearing of this application for recall, there was a teleconference on 26 October 2018. The Minute of that date records Mr Billington’s brief submission in support of his application for recall. Ms Swadling said that counsel for Mr Billington on the costs appeal understood the issues arising out of the Family Court proceedings. Mr Billington is trying to raise issues arising out of the Family Court judgment, of which he would have been well aware. The Minute records my understanding that Mr Billington says in some way the matters he identifies should have been put before me to reflect the degree of “success” by him on his appeal to the High Court, which was settled.
[9] Because Mr Billington says that either his supplementary submission was not made to me as he wanted, or inferentially that I did not bring it to account, I directed that former counsel be given a copy of Mr Billington’s application for recall, the opposition filed by Ms Swadling, with memoranda, and said Mr Mitchell could reply if he chose.
[10] I observed that an application for recall faces clear constraints and this application did not seem, on the limited material before me, to fall within the very special circumstances necessary to warrant recall. Partly because of that, Ms Swadling sought security for costs for this application for recall and advised the Court there have
been difficulties in enforcing costs out of earlier orders. I reserved the question of security, but no order was made.
Former counsel
[11] At the beginning of the recall hearing, Mr Billington’s former counsel was at the back of the Court, no longer instructed. I enquired whether there was anything that could be agreed between Mr Billington and counsel which would not cross the solicitor/client privilege barrier, as I wanted to know whether Mr Billington’s supplementary submission which he says should have been put before me at the costs appeal hearing had been given to his counsel, and if so, what had happened to it. One possibility is that it was considered but not used because counsel had a view that it was not relevant. Alternatively, it may have been used in some way, drawn into the well-argued submissions that were made for Mr Billington at the costs appeal. Another possibility is that they were simply overlooked. There are various permutations as to what may have occurred.
[12] However, counsel was understandably reluctant to answer any question in Court, even as to whether he had received the supplementary submission, because he felt that would provide an incomplete answer to my enquiry about what happened to it. There is a clear indication that Mr Billington and has other steps in mind, so it was not viable to pursue this issue any further, and I was thus left short of sufficient information about the supplementary submission. That meant I have had to address whether the matters raised by Mr Billington were brought to account by me for the costs appeal judgment, and if not, whether they were relevant to such a degree that recall should be considered under established principles.
The first respondent’s position
[13] Ms Swadling for the first respondent Ms Morton opposes the application for recall, and says that no legal basis had been made out for the orders he seeks. She submits that the matters that he refers to in the supplementary submission relate to issues in the substantive proceedings, and have no relevance to the costs appeal to which the judgment of 28 September 2018 responds.
C. ISSUES ARISING
Were the supplementary submissions used in the costs appeal?
[14] The first issue is whether the supplementary submission in support of the appeal dated 18 September 2018 was filed, or was otherwise used in and incorporated into submissions made by Mr Mitchell. The short answer is that it was not filed, Mr Billington does not know if it was used, and counsel reasonably will not say.
[15] As to whether it was used in some way on the costs appeal hearing it does not seem to me that it was, looking at counsel’s submissions at the costs appeal hearing.
Were what Mr Billington says are the “most significant facts for consideration” in the supplementary submission relevant to the costs appeal?
[16] Ms Swadling says they are not relevant at all, as she submitted at the teleconference on 26 October 2018.
[17] The first issue involves the Billington Dromorne Family Trust (“the Trust”). Mr Billington says that in the costs decision of the Family Court, and the costs judgment of this Court on appeal, the claims made by Ms Morton under the Property (Relationships) Act and s 182 FPA for occupation rent, were considered relevant. However, he says Ms Morton had filed a statement of claim on 29 January 2015 against the Trust as under the Trustee Act 1956, in relation to these matters, in High Court proceedings.2
[18] The four adult “preferred beneficiaries” are said by Mr Billington to have an indefeasible interest in the capital and income of the Trust, including Ms Morton and Mr Billington. The independent trustee has always been Wilson McKay Trustee Company Limited. Ms Morton’s statement of claim did not seek compensation or occupation rent for any preferred beneficiaries having had use of the Trust’s property and Mr Billington says on 8 March 2016 he offered to finance the Trust to settle Ms Morton’s claim in the High Court in full. These Trustee Act proceedings were settled in the High Court on 14 March 2016 with consent orders but the trustee
2 Which resulted in judgment: Morton v Billington and Wilson McKay Trustee Company Limited
[2016] NZHC 2967.
company remained as trustee on the basis that it would consult with all four preferred beneficiaries. Mr Billington says there has been no consultation “in breach of the consent orders’.
[19] Mr Billington also says the trustee failed to provide legal representation or to represent the beneficiaries’ views to the Family Court. He submits that the judgment of the Family Court under s 182 FPA was wrong because the first respondent’s claim against the Trust was ‘res judicata’, and there was thus no jurisdiction of the Family Court to order the trustees to sell the Trust property, and no jurisdiction to award compensation for occupation rent by one preferred beneficiary. He says the Court should have enquired into the Trustee Act proceedings before reaching judgment. Mr Billington also submits that counsel for the Trust failed to draw the Court’s attention to relevant authority.
[20] Mr Billington also says that his supplementary submission included a letter from his then solicitors, Morgan Coakle, of 8 March 2016, which proposed a full settlement of Ms Morton’s claim against the Trust relevant to the High Court proceedings. It also recorded his willingness to enter mediation and at the time there was no FPA proceeding, so that after March 2016 the proceedings were “not only unnecessary, but malicious and vexatious”. He says that Ms Morton therefore “caused and perpetrated” unnecessary legal costs and it is wrong that the three other adult preferred beneficiaries should be burdened with these. He complains that Ms Morton has never agreed to mediation and the Family Court has never “offered” a settlement conference.
Full and final
[21] On a separate front, he says the memorandum of consent of 7 December 2017, which settled the appeal to the High Court from the substantive decision of the Family Court, was entered into “on the confirmed basis of legal advice” that it was in full and final settlement, but decision as to costs “implies that it is not a full and final settlement”. He says he was misled and the parties should agree to avoid the contract or, alternatively, an order is required to that effect.
[22] Based on these grounds, Mr Billington seeks recall of this Court’s costs judgment, and directions which I set out in full:
(a)To find that the first respondent’s claim under the Family Proceedings Act 1980 on 8 June 2016 was Res Juicata and that the Family Court out to have struck it out at the outset.
(b)To find that the Family Court had no jurisdiction to order the trustee to sell a real property were four adult preferred beneficiaries had an absolute, vested and indefeasible interest;
(c)To find that the Family Court was wrong to step into the trustees shoes to apply an occupation rent against only one of the two adult preferred beneficiaries in residence, or to consider its part time occupation by a third adult preferred beneficiary;
(d)To find that the Family Court was wrong to treat adult preferred beneficiaries of the trust as children of the relationship;
(e)To find that the second respondent’s second application for discovery in December 2015 had no merit and was potentially motivated to delay the substantive hearing until after the Trustee Act proceedings in March 2016 and to further enhance then unpresented, but intended, retrospective time based claims;
(f)To find that the second respondent trustee had not complied with the Consent Orders of 14 March 2016 and had withheld relevant information of the Trustee Act proceedings;
(g)To find that the second respondent trustee was negligent not to arrange legal representation for the two other adult preferred beneficiaries and to append them to the trust proceedings;
(h)To find that the appellant offered mediation on 8 March 2016 (refer to letter of Morgan Coakle which refers to previous requests) and that the first respondent never accepted any mediation;
(i)To find that Family Court was wrong not to offer the appellant a settlement conference at any time after Judge Flemming had minuted in October 2015 that discovery proceedings had been completed and closed by Judge McHardy in July 2015;
(j)To find that the Family Court should have seen from its records that the first respondent had initiated an abnormal number of other legal proceedings (since marital separation in June 2013) against the appellant and Mr CH Billington, all without any mediation and all “without notice”. These included Parenting Order, order Preventing Removal, s 133 Report, IRD Administrative Review, DVA Protection Order, Trustee Act. The appellant was vindicated at Court on every proceeding. None had merit. All caused harm to Mr CH Billington.
(k)To find that the Family Court failed to treat the appellant as innocent until proven guilty. It ought to have asked the appellant, at least once, why a 59 year old Fellow of the Institute of Chartered Accountants in
England and Wales, with no criminal record, no involvement with CYFS, no previous court record, the parent who their son (Mr CH Billington) chose to live with as stated by the Lawyer for Child and s 133 Report, with the first respondent’s sworn in affidavit of 1 August 2013 stating that the appellant wanted to return to the UK for work, was then systematically and relentlessly held in NZ by endless court proceedings filed by the first respondent.
(l)To find that the first respondent made no attempt whatsoever to resolve relationship property proceedings after the settlement of the Trustee Act proceedings in March 2016 and before she started the Family Proceedings Act proceedings in June 2016;
(m)To find that the first respondent refused all requests for mediation and to note that her counsel is accredited to the NZLS Family Specialist Panel of Mediators and an associate member of the Arbitrators and Mediators’ Institute of New Zealand (AMINZ);
(n)To find the first respondent to have been a malicious and vexatious litigant.
[23] He also seeks costs as a deterrent to others considering “gaming” the Family Court system, in a way which has had, he says, such an effect on him. He also seeks orders that the Trust company be prohibited from charging legal fees due to their “breach of consent orders” or, in the alternative, to order that Ms Morton pays all the legal fees of the second respondent.
D. DISCUSSION
[24] Mr Billington, I thought, was very frank and obviously distressed by the history of the litigation, the cost, and the toll on him. He says he has no money left. This is not altogether surprising given the intense degree of litigation and the toll on his ability to earn a living. It is apparent that he has an underlying grievance, that he believed he settled all matters including costs in the High Court, when it proved otherwise and the Family Court made the costs order which he then took on appeal and lost. Mr Billington’s submission is that the issues raised in his supplementary memorandum, discussed above, were relevant to costs but not addressed.
[25] The first issue identified above relates to the circumstances in which proceedings under the Trustee Act came before the High Court and resulted in the resignation of him and Ms Morton as trustees, reflected in consent orders made by Hinton J on 14 March 2016. No substantive resolution of Trustee Act issues was
recorded there. There was prior without prejudice correspondence (which should not have been shown to the Court) by which Mr Billington tried to resolve Trust issues, with an offer of settlement. He is most concerned that having tried to settle all matters in this way, a claim was made under s 182 Family Proceedings Act, and went before the Family Court, which he says was quite unnecessary because he was prepared to settle. This is not relevant to this judgment on the application for recall, which is confined to whether there is some material error or omission in my costs judgment which is of such moment as to require recall in the interests of justice.
[26] Secondly, he says there were many elements of the Family Court judgment which were wrong, and that should be reflected in costs. The obvious place to address those issues was on appeal, and Mr Billington says that they were part of the substantive appeal, which was then settled, and successfully settled from his perspective, and therefore should have been brought to account in any costs judgment, including that on appeal.
[27] Ms Swadling’s response is that the matters raised are not relevant to costs, and never were, and they simply reflect Mr Billington’s dissatisfaction with the substantive decision in the Family Court, which was not then reflected in the settlement in the High Court. The parties reached agreement on certain matters, which did not disturb the substance of the Family Court decision but rather affected its incidence, and effect.
A look back at the proceedings
[28] Given Mr Billington’s submission, I have looked again at the reserved decision of His Honour Judge Maude of 16 June 2017. It refers to the application for provision under s 182 FPA. The Court recognised the power of the Court to vary terms of an agreement or nuptial settlement, rather than to enforce a relationship property entitlement. The Judge referred to well established authority, and concluded that this Trust is a nuptial settlement. It relates to the acquisition of property at Dromorne Road, and the removal of Ms Morton and Mr Billington as trustees, in the context of the High Court proceedings brought by Ms Morton. The Judge reminded himself that the Court does not simply transfer the Trust assets to the parties as if relationship property. There was an application that Mr Billington account to the Trust
for developments post separation. The Judge fixed a reasonable market rental before bringing to account that Mr Billington is a beneficiary and a modest concessionary rate was fixed. Two new trusts were to be established on terms set out.
[29] Ms Morton then made application for costs on 12 July 2017 and sought an uplift, setting out a narrative of what was said to be default and a lack of co-operation by Mr Billington. Mr Billington, through counsel Ms Hunter, responded by submissions dated 27 July 2017 and opposed costs.
[30] Muir J then issued a Minute of 7 December 2017 on the appeal by Mr Billington. The Minute records the settlement of the appeal and a memorandum of consent was annexed. The proceeds of sale of the Dromorne Road home devolved to the parties personally, so there was agreement to discharge the orders of the Family Court in that respect. Leave was reserved for any further directions required. The orders made by consent were set out in a memorandum of 7 December 2017 and made no reference to costs, which had not been determined in the Family Court.
[31] Mr Billington then sought to file further submissions in relation to costs in the Family Court which Ms Swadling opposed, referring to the directions given by the Family Court in that regard. She recorded “The issue of costs has not been dealt with despite the significant lapse of time”. Submissions for Mr Billington, dated 19 December 2017, record that there had been an appeal to the High Court and consent orders were made, and a copy of Muir J’s Minute of 7 December 2017 was attached, with the consent orders. In the submissions, it was asserted that the claims of both parties lacked merit. There was no reference to costs having been settled associated with the appeal to the High Court and the settlement outlined. Mr Billington’s submissions concluded by saying that the submission that “he should be penalised as a result of his actions” does not reflect the reality of relationship property proceedings, and that costs should lie where they fall.
E. CONCLUSION
[32] The points raised by Mr Billington now do not reflect in any way on the ‘merits’ of settlement in the High Court. They raise at best extraneous, but linked issues. The result is that I can find nothing in the application for recall to support the
proposition that there were relevant matters that should have come before me, as Mr Billington says he wanted, that were of such consequence to require recall. Whatever the fate of his supplementary submission, it would have made no difference to the costs outcome.
F. DISPOSITION
[33] In the circumstances, the application for recall is dismissed. However, the Court recognises of Mr Billington’s sincerity about this outcome being wrong and I express the hope that he is able to move forward. Ms Swadling seeks costs of
$11,484.50 for the costs appeal and $5,909.50 for the application for recall. Mr Billington may file a memorandum in response. He has to face up to costs of failed appeals and applications. However, I am disposed to consider tempering costs if he has no assets as he says.
…………………………………
Nicholas Davidson J
Solicitors:
M H Billington, Auckland Richard S Wood, Auckland cc counsel:
K E Swadling, Barrister, Auckland