Blanchard v Littlejohn - [2022] NZHC 3196

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2022-419-000123

[2022] NZHC 3196

IN THE MATTER of s 339 of the Property Law Act 2007

AND IN THE MATTER

of an application for orders for the sale of a property

BETWEEN

IAN DAVID BLANCHARD as trustee and executor of the estate of Maria Nita Amy Jeffries

First Applicant

AND

HELEN MARY LITTLEJOHN, MICHAEL JOHN TAYLOR and STEPHEN CHARLES

MUNRO as administrators of the estate of Jeanette Florence Littlejohn as trustee and executor of the estate of Arthur George

Littlejohn
Second Applicants

AND

THERESA MARIE JEFFRIES

Respondent

Hearing: (On the papers)

Counsel:

David Sheppard for the Applicants Respondent in Person

Judgment:

6 December 2022

JUDGMENT OF MOORE J

[Costs]

This judgment was delivered by me on 6 December 2022 at 4:00 pm. pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

BLANCHARD & ORS v JEFFRIES [2022] NZHC 3196 [6 December 2022]

Background

[1] This case concerned an application under s 339 of the Property Law Act 2007 (“the PLA”) for orders for the sale of a family property in Tamarunui.

[2] The property is presently occupied by the respondent, Theresa Jeffries. Her interest in the property was bequeathed to her by her late husband, Keith Jeffries. She presently holds a one third share of the property.

[3] The first and second applicants are the representatives of Keith Jeffries’ two siblings, Maria Jeffries and Arthur Littlejohn. Both are also deceased. Each was bequeathed a one third share in the property upon the death of their mother, as was Keith Jeffries.

[4] The first and second applicants wished to liquidate their interests by selling the property. They proposed that Theresa Jeffries acquire their shares or alternatively that the property be sold on the open market. She originally refused, leading the applicants to apply to the Court for the sale of the property.

[5] The matter was called before me by way of telephone conference.1 Theresa Jeffries modified her position. She would not oppose the sale of the property if the applicants agreed that they will not take any action against her if she disposes of or destroys items of family property stored there.

[6] I granted the order for the sale of property, conditional upon the applicants providing an undertaking allaying Theresa Jeffries’ concerns about the items of family property.

[7] Although the applicants filed a memorandum addressing the issue of costs, I did not make an order as to costs. I explained to Theresa Jeffries, who self-represented, that the applicants sought 2B scale costs. While costs would ordinarily be payable to the successful party, the Court enjoys a wide discretion as to whether costs should be

1 Blanchard v Jeffries HC Hamilton CIV-2022-419-123, 1 September 2022.

awarded. She told me that she is unable to pay costs because she is in straightened circumstances and ill health.

[8] I directed that she file and serve a memorandum as to why…

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 Blanchard v Littlejohn

Details

AGLC: Blanchard v Littlejohn [2022] NZHC 3196
Case: [2022] NZHC 3196
Decision Date: 6 December 2022

CaseChat Overview and Summary

This case involved an application for orders for the sale of a family property located in Tamarunui. The applicants, Ian David Blanchard and Helen Mary Littlejohn, as representatives of the estates of Maria Nita Amy Jeffries and Arthur George Littlejohn, sought to liquidate their interests in the property by selling it. The property was jointly owned by the respondents, Theresa Marie Jeffries and the estates of the applicants. Theresa Jeffries, who held a one-third share in the property, initially refused to agree to the sale. Consequently, the applicants applied to the Court for an order for the sale of the property. The court was required to decide whether Theresa Jeffries should be ordered to pay 2B scale costs and disbursements to the applicants.

The issue before the court was whether Theresa Jeffries should be ordered to pay 2B scale costs and disbursements to the applicants. The general rule is that the party who fails with respect to a proceeding should pay costs to the party who succeeds. The court considered that Theresa Jeffries' intransigent approach to the sale of the property forced the applicants to bring their application. Despite Theresa Jeffries' claims of financial hardship and ill health, the court found that her conduct justified the applicants being awarded 2B scale costs. The court emphasised that costs awards must be made at a meaningful level, even against an impecunious party, particularly where the case is found to have lacked merit.

The court ordered Theresa Jeffries to pay 2B scale costs of $10,277 and disbursements of $890 to the applicants. The court found that Theresa Jeffries' conduct put the applicants to additional time and expense, justifying the award of costs. The court also noted that Theresa Jeffries' claims of financial hardship did not justify an abatement of costs, as the underlying proceeding related to the sale of a property in which she held a share. She would receive a portion of the sale proceeds, and any costs award could be deducted from her share of those proceeds.

Orders