Blake v Blake - [2022] NZHC 594

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2020-463-18

[2022] NZHC 594

BETWEEN
BARTLEY BLAKE

Applicant

AND

MAYSIE BLAKE

First Respondent

HMR LIMITED

Second Respondent

Hearing: On the papers

Counsel:

J Billington QC and K Lellman for Applicant

D Chambers QC, E Armstrong and I Hikaka for First Respondent

Judgment:

29 March 2022

JUDGMENT OF WHATA J

Re Costs

This judgment was delivered by me on 29 March 2022 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors: Tompkins Wake, Tauranga

LeeSalmonLong, Auckland

BLAKE v BLAKE [2022] NZHC 594 [29 March 2022]

[1]This is a costs judgment concerning:

(a)An appeal by Mr Blake against a decision of the Family Court;1

(b)An appeal by Mrs Blake against the same decision;2

(c)An appeal by Mrs Blake seeking the vesting of a commercial property;3 and

(d)Reconsideration of the economic disparity award.4

[2] Approaching matters in the round, Mrs Blake was the successful party – she succeeded in obtaining a favourable adjustment to the relationship property division of about $9 million.5 However, Mr Blake had some success on his appeal, was the successful party in relation to Mrs Blake’s appeal in respect of the commercial property and also obtained a reduced economic disparity award.

[3] I have come to the view that in light of this mix of outcomes, and notwithstanding my indication in the economic disparity decision that costs should lie where they fall,6 Mrs Blake should have her costs as sought, but reduced by 35 per cent.

[4]My detailed reasons follow.

1      [Blake] v [Blake] [2020] NZFC 212 [Family Court substantive decision]. See also [Blake] v [Blake] [2021] NZHC 756 [Interim decision].
2      Family Court substantive decision, above n 1.
3      Family Court substantive decision, above n 1 and Interim decision, above n 1.
4      [Blake] v [Blake] [2021] NZHC 2590 [Economic disparity decision].
5      This total is the difference between the Family Court substantive decision judgment sum for the increase in the value of the HML shares and this Court’s judgment sum for the increase in HML shares (as well as other factors) on the basis that the division of the balance of assets was similar. The difference between the Family Court judgment sum (which found Mrs Blake had a 40 per cent share in $113,780,076, see Interim decision, above n 1, at [49(b)(iii)]) and this Court’s judgment sum (which found Mrs Blake had a 50 per cent share in $108,232,663, see Interim decision, above n 1, at [62(c)]) is $8,604,301.10. I do not discount the possibility that the sum could have been as high as $9.5 million but I have been unable to verify that. The difference is not material for present purposes in any event.
6      Economic disparity decision, above n 4, at [65].

Background

The appeals

[5] Mr Blake’s appeal raised 11 major issues. Mrs Blake’s appeals raised seven issues. These issues are recorded at Appendix A of the…

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 Blake v Blake

Details

AGLC: Blake v Blake [2022] NZHC 594
Case: [2022] NZHC 594
Decision Date: 29 March 2022

CaseChat Overview and Summary

Bartley Blake brought an appeal against a decision of the Family Court, while Maysie Blake brought two appeals against the same decision. Maysie Blake also sought the vesting of a commercial property and reconsideration of the economic disparity award. The matter was heard on the papers. Mrs Blake was the successful party overall, but Mr Blake succeeded on 8 of the 11 major issues in his appeal. Mrs Blake failed in her application to have a commercial property vested in her, and the economic disparity award was reduced. The court found that Mrs Blake should have her costs as sought, but reduced by 35 per cent. Mrs Blake was successful or partially successful on four of the seven issues on her appeal, but her successes were far less substantive than Mr Blake’s successes. The court found that Mrs Blake was not entitled to costs on all steps and any reduction from scale costs was appropriate. The court found that the Calderbank offers were not qualitatively clearly superior to the final judgment sum, and Mr Blake’s success on the appeals was relevant to the exercise of the court’s discretion. The court found that costs following the event, discounted to reflect the matters noted above, was reasonable and just in the circumstances of this case.

Orders