Bowden v Bowden - [2017] NZHC 1841

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 Respondent

Judgment:

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…

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 Bowden v Bowden

Details

AGLC: Bowden v Bowden [2017] NZHC 1841
Case: [2017] NZHC 1841
Decision Date: 4 August 2017

CaseChat Overview and Summary

In Bowden v Bowden, Ms Judith Bowden appealed a Family Court decision which found that there were extraordinary circumstances that made an equal sharing of relationship property with her deceased partner’s estate repugnant to justice. The appeal was heard in the High Court of New Zealand, Christchurch Registry, with the respondent, Mr Paul Bowden, seeking costs of $7,392.50 which he claimed were the actual and reasonable costs incurred. Judith Bowden opposed any award of costs, submitting that costs should lie where they fall. The court had to determine whether Mr Bowden was entitled to costs, whether the costs award should be uplifted due to the refusal of a Calderbank offer, and the appropriate amount of costs, if any, to be awarded.

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