Boswell v Millar - [2013] NZHC 1583

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2007-419-392 [2013] NZHC 1583

BETWEEN KATHRYN FRANCES BOSWELL Plaintiff

ANDOWEN ROSS MILLAR Defendant

Hearing: On the papers

Appearances: K F Boswell in person
D S Quinn for Defendant

Judgment: 27 June 2013

JUDGMENT OF KATZ J [Costs]

This judgment was delivered by me on 27 June 2013 at 3:00 p.m.
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Chatwin Legal Limited, Hamilton

Copy to: K F Boswell, Paeroa

BOSWELL v MILLAR [2013] NZHC 1583 [27 June 2013]

Introduction

[1] The plaintiff, Kathryn Boswell, leased part of the defendant, Owen Millar’s farm (“Property”). A dispute arose between the parties as to whether Ms Boswell had the right to purchase the Property and, if so, on what terms. That dispute was settled on 12 February 2008, the first day of the original trial. The terms of settlement were recorded in a settlement agreement. Unfortunately, however, various disputes then arose as to the meaning and effect of the settlement agreement.

[2] The statement of claim was amended to reflect the new disputes and a new trial scheduled. Prior to the second trial a number of issues were resolved, leaving four key issues raised by Ms Boswell, as well as Mr Millar’s counterclaim, to be determined.

[3] In a judgment delivered on 10 April 2013 (“Judgment”) I dismissed Ms Boswell’s claims. I also dismissed Mr Millar’s counterclaim. I gave a preliminary indication that, in my view, costs in favour of Mr Millar on a Category 2, Band B basis would be appropriate. I invited the parties to file memoranda if agreement could not be reached based on this indication.

[4] Agreement could not be reached and accordingly both parties have filed memoranda. I must determine whether costs should be awarded against either of the parties and, if so, the quantum of such costs. Finally, I consider Ms Boswell’s application that any award of costs against her be stayed pending the outcome of her appeal against the Judgment.

Should an award of costs be made?

[5] Ms Boswell filed a memorandum in respect of costs, dated 6 June 2013. That memorandum was rejected for filing by the registry due to its use of intemperate language. Ms Boswell was asked to re-draft her memorandum. She did so and on
18 June 2013 filed a revised memorandum. In it, however, she asserted that she had been prejudiced as a result of her first memorandum being rejected, as it had “addressed every issue raised by the defendant’s counsel”. I accordingly requested

the registry to provide me with a copy of Ms Boswell’s original 6 June 2013 memorandum. I have therefore considered both of Ms Boswell’s memoranda.

[6] Ms Boswell’s primary submission as to why costs should not be awarded against her is that the Judgment was wrong. However that is an issue for the Court of Appeal to consider, in the context of the appeal that Ms Boswell has filed. For present purposes any assessment of costs…

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 Boswell v Millar

Details

AGLC: Boswell v Millar [2013] NZHC 1583
Case: [2013] NZHC 1583
Decision Date: 27 June 2013

CaseChat Overview and Summary

In Boswell v Millar, the plaintiff Kathryn Boswell, a lessee of the defendant Owen Millar's farm, sought to purchase the property under a settlement agreement that was made on the first day of the original trial. Disputes arose regarding the meaning and effect of the settlement agreement, leading to a second trial. The High Court dismissed both the plaintiff's claims and the defendant's counterclaim. The Court was then tasked with determining whether costs should be awarded, and if so, the quantum and whether the costs award should be stayed pending the plaintiff's appeal against the judgment. The plaintiff argued that the judgment was wrong, and therefore, no costs should be awarded. However, the Court noted that the assessment of costs must proceed on the basis that the judgment stands, pending determination of the appeal. The Court found that the plaintiff's claims were unsuccessful and the primary focus of the case, and therefore, she should make a reasonable contribution to the defendant's costs. The Court awarded costs on a Category 2, Band B basis, amounting to $33,830.00, together with disbursements of $108.80, totalling $33,938.00. The plaintiff's application to stay the enforcement of costs pending appeal was declined.

The Court held that costs follow the event, and the losing party should make a reasonable contribution to the costs of the successful party. Given that the plaintiff's claims were unsuccessful and the primary focus of the case, she should contribute to the defendant's costs. The Court found that scale costs on a Category 2, Band B basis were appropriate, considering the multiplicity of issues raised in the proceedings. The Court also declined to stay the enforcement of costs pending appeal, as the defendant had behaved reasonably and should not be "out of pocket" while the plaintiff's appeal was progressed. The plaintiff was ordered to pay the defendant costs in the sum of $33,938.00, and the application to stay the enforcement of costs pending appeal was declined.

Orders