Boyer v McCracken - [2024] NZHC 1444

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2015-404-000800

[2024] NZHC 1444

IN THE MATTER OF the Property Law Act 2007

BETWEEN

ARTHUR JAMES BOYER and NICOLE RUTH KRAMER

Plaintiffs

AND

CLARE McCRACKEN

Defendant

Hearing: [On the Papers]

Counsel:

R J Hollyman KC and A J Peat for Plaintiffs S A Grant for Defendant

Judgment:

31 May 2024

JUDGMENT OF HINTON J

[Costs]

This judgment was delivered by me on 31 May 2024 at 4.30pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Counsel/Solicitors:
R J Hollyman KC, Auckland
McEntee Barristers and Solicitors, Auckland S A Grant, Auckland

BOYER v McCRACKEN [2024] NZHC 1444 [31 May 2024]

[1] This application concerns costs following the latest proceeding in a long-running dispute between the parties. By judgment dated 19 March 2024, I ordered that Ms McCracken’s application for orders as to the form of a registrable covenant area only plan be stayed on the basis that the issue was the subject of arbitration.1 I held that the plaintiffs were entitled to costs. The parties have been unable to agree on quantum.

[2]The plaintiffs seek increased costs of $23,033 or alternatively scale costs of

$15,356. They also seek disbursements of $550.

[3] Ms McCracken submits that increased costs are not justified and that scale costs amount to $7,959.

The law

[4] Costs are at the discretion of the court.2 The key principles applicable to the determination of costs are set out in r 14.2 of the High Court Rules 2016 and include that the party who fails with respect to a proceeding or interlocutory application should pay costs to the party who succeeds.

[5]Rule 14.6(3) of the High Court Rules provides:

(3) The court may order a party to pay increased costs if—

…

(b)the party opposing costs has contributed unnecessarily to the time or expense of the proceeding or step in it by—

…

(ii)taking or pursuing an unnecessary step or an argument that lacks merit; or

(iii)failing, without reasonable justification, to admit facts, evidence, documents, or accept a legal argument; or

…

1 Boyer v McCracken [2024] NZHC 571.
2 High Court Rules 2016, r 14.1(1).

[6] The party seeking increased costs bears the onus of demonstrating such costs are justified.3 Where increased costs are awarded because a claim lacked merit, it will often be appropriate for increased costs to apply to all steps.4

[7] Rule 14.6(3)(b) is concerned with improper or unreasonable steps.5 The unreasonable conduct must be in relation to the proceeding and does not include conduct that took place before the proceeding was commenced.6 Increased costs are not intended to be punitive7 and will not be appropriate where there is some reasonable explanation for the defendant’s conduct.8

Scale costs

[8] Before addressing the claim for increased costs, I must first address the quantification of scale costs.

[9] I agree with the parties that 2B costs are appropriate for all steps. The proceeding was of…

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 Boyer v McCracken

Details

AGLC: Boyer v McCracken [2024] NZHC 1444
Case: [2024] NZHC 1444
Decision Date: 31 May 2024

CaseChat Overview and Summary

The case of Boyer v McCracken before the High Court of New Zealand involves a long-standing dispute between the plaintiffs, Arthur James Boyer and Nicole Ruth Kramer, and the defendant, Clare McCracken. The primary issue in this case is the determination of costs following a recent proceeding related to the form of a registrable covenant area only plan, which the court had previously stayed pending arbitration. The plaintiffs sought increased costs of $23,033 or, alternatively, scale costs of $15,356, along with disbursements of $550. In response, Ms McCracken argued against the justification for increased costs and proposed a lower amount for scale costs.

The court examined the applicable legal principles concerning costs, emphasizing that costs are within the court's discretion and that the party who fails in a proceeding should generally bear the costs of the successful party. The court also noted that increased costs could be awarded if the opposing party contributed unnecessarily to the proceedings through actions such as taking or pursuing steps that lacked merit or failing to admit facts without reasonable justification. The plaintiffs bore the burden of demonstrating that increased costs were justified. The court first addressed the issue of scale costs, considering the complexity of the proceeding and the appropriate allocation of time for various steps. The court found that while some of the plaintiffs' claims for specific steps were excessive, others were reasonable, leading to a final determination of scale costs amounting to $10,994.

Turning to the issue of increased costs, the court considered whether Ms McCracken's actions warranted such costs. The plaintiffs argued that Ms McCracken's pursuit of her application despite the pending arbitration and changes in her legal position constituted unreasonable conduct. However, the court determined that while Ms McCracken's position was ultimately unsuccessful, it was not so unmeritorious as to justify increased costs. The court also dismissed Ms McCracken's claim that the plaintiffs' failure to comply with previous court orders should result in reduced costs. Ultimately, the court concluded that the appropriate award was scale costs of $10,994 and disbursements of $500.

In summary, the court awarded the plaintiffs scale costs of $10,994 and disbursements of $500, declining to award increased costs. This decision reflects the court's assessment of the reasonableness of the parties' conduct and the merit of their respective positions in the context of the proceedings.

Orders