IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2015-409-702 [2017] NZHC 1841
BETWEEN JUDITH ANNE BOWDEN
Appellant
AND
PAUL GORDON BOWDEN Respondent
Hearing: 4 August 2017
(On the papers)
Appearances:
A S Greig for Appellant
A D Marsh for RespondentJudgment:
4 August 2017
JUDGMENT OF MANDER J
Introduction
[1] Ms Judith Bowden (JB) appealed a finding by the Family Court that there were extraordinary circumstances that made equal sharing of relationship property with her deceased partner’s estate repugnant to justice. JB was partially successful, although on the majority of grounds her appeal was dismissed.1
[2] The respondent, Mr Paul Bowden (PB), seeks costs of $7,392.50 which he says are the actual and reasonable costs incurred, and which are lower than scale costs. JB opposes any award of costs. She submits costs should lie where they fall.
Background
[3] JB was the partner of Mr Gordon Bowden for three years and two days, up
until his death in 2012. PB is Gordon Bowden’s son, born of a previous relationship. In his will Gordon Bowden left his estate to PB. The Family Court found the
1 Bowden v Bowden [2016] NZHC 1201, [2017] NZFLR 56.
relationship property consisted of the home the deceased and JB lived in together, with equity of approximately $300,000, and a shared bank account with funds of
$31,655.79. However the Court held that exceptional circumstances were present which made equal sharing of that property repugnant to justice. It ordered that JB be awarded 20 per cent of the relationship property.
[4] I upheld the finding of repugnancy, and the allocation of a 20 per cent share. The Family Court’s findings regarding JB’s obligations as to rent, rates, and insurance for her continued use of the matrimonial home were also upheld. However, I allowed one ground of appeal, finding the ACC payout of approximately $100,000 to be relationship property which JB was entitled to a 20 per cent share.
The Calderbank offer
[5] In the lead up to the initial Family Court hearing, PB made a settlement offer without prejudice save as to costs by which JB would be entitled to a 50 per cent share in the relationship home. The parties would share the costs of engaging a valuer. Following the valuation JB would have the option for 28 days to purchase PB’s half-share. If not exercised, PB would then have a reciprocal right to purchase for the following 28 days. If neither exercised the purchase option, the house would be sold and the proceeds divided equally. The settlement offer also anticipated JB paying 50 per cent of the reasonable market rental for the period of her occupation for the one year after the death of her partner – an amount lower than eventually ordered by the Court.
[6] The offer was made on 2 April 2015 and a response anticipated within seven days. The offer was withdrawn on 7 May after PB became aware of this Court’s decision in Venter v Trenberth, which…
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CaseChat Overview and Summary
The court found that Mr Bowden was the successful party on the appeal and therefore prima facie entitled to his costs. The court concluded that a discount should apply to reflect Ms Bowden’s partial success, with a 20 per cent discount being warranted. The court also considered whether there should be an uplift in the costs award due to Ms Bowden’s refusal to accept a Calderbank offer before trial. The court found that the rejection of the Calderbank offer was not reasonable, and an uplift was appropriate in this case. The court determined that the best way to account for both the partial success of Ms Bowden and the effect of the Calderbank offer was to allow Mr Bowden to recover his actual costs of $7,392.50, subject to him providing a schedule that confirms the basis for the figures indicated in his submissions.
In conclusion, the court awarded costs to Mr Bowden in the sum of $7,392.50. The court recognised the importance of providing a disincentive to litigate where a reasonable settlement is available, and the consequences of refusing a Calderbank offer in this context. The court also considered the merits and outcome of the appeal, ensuring that the assessment of costs did not overshadow the overall result of the case.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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