Broderick v Broderick - [2015] NZHC 1038

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2014-488-203 [2015] NZHC 1038

BETWEEN
DALE BRODRICK AND ALEXANDER

BRODRICK AS TRUSTEES OF TE WHANAU TRUST

Plaintiffs

AND

MARIA BRODRICK Defendant

Hearing: On the papers

Appearances:

J Browne for applicants
A Easterbrook for respondent

Judgment:

18 May 2015

JUDGMENT OF LANG J

[on application for review of Associate Judge's decision in relation to costs]

This judgment was delivered by me on 18 May 2015 at 2 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

BRODRICK v BRODRICK [2015] NZHC 1038 [18 May 2015]

[1] In this proceeding the trustees of the Te Whanau Trust (the Trustees) sought a vesting order under s 52 of the Trustee Act 1956 (the Act). The defendant, Mrs Brodrick, was formerly a trustee of the Trust. The current trustees alleged that she had failed to transfer her interest in the property to the Trustees after she had been removed as a trustee in September 2014.

[2] The Trustees discontinued the proceeding prior to the expiry of the time within which Mrs Brodrick was required to file a statement of defence. This occurred after the parties reached a settlement under which Mrs Brodrick agreed to execute a transfer of her interest in the property to the Trustees in return for receiving an indemnity from them in respect of any liability she might have in relation to the trust’s indebtedness.

[3] The settlement left open the issue of costs. The Trustees sought an award of costs in their favour on the basis that they had effectively succeeded in obtaining the relief they sought in this proceeding, albeit by agreement rather than by order of the Court.

[4] In a decision delivered on 10 March 2015, Associate Judge Bell directed that costs were to lie where they fall.1 The Trustees apply for review of that decision.

Relevant principles

Application for review

[5] The issue of costs is governed by Part 14 of the High Court Rules. Rule 14.1 provides that all costs are at the discretion of the Court. The application for review is therefore an application to review the exercise of a judicial discretion.

[6] Although the application proceeds by way of rehearing, nevertheless the Associate Judge must be shown to have erred in the manner in which he exercised his discretion. Reviewable error may be shown if the decision was plainly wrong, or

1 Brodrick v Brodrick (Costs Minute) HC Whangarei CIV-2014-488-203, 10 March 2015.

was based on an erroneous application of principle. Alternatively, review may be appropriate where the tribunal exercising the discretion has taken into account an irrelevant consideration or has failed to take into account a relevant consideration.2

Costs

[7] Although costs are at the discretion of the Court, the discretion must be exercised having regard to the principles contained in r 14.2 of the High Court Rules. To the forefront of these is the principle that the unsuccessful party in a proceeding should pay costs to the successful…

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 Broderick v Broderick

Details

AGLC: Broderick v Broderick [2015] NZHC 1038
Case: [2015] NZHC 1038
Decision Date: 18 May 2015

CaseChat Overview and Summary

The case of Broderick v Broderick involved a dispute between Dale Broderick and Alexander Broderick, as trustees of the Te Whanau Trust, and Maria Broderick, who was previously a trustee of the Trust. The trustees sought a vesting order for the transfer of a property to them, alleging that Maria had failed to transfer her interest in the property after being removed as a trustee. The parties reached a settlement, but the issue of costs remained unresolved. The trustees sought an award of costs in their favor, arguing that they effectively succeeded in obtaining the relief they sought by agreement. The Associate Judge had previously ruled that costs were to lie where they fall, and the trustees sought a review of that decision. The legal issues involved the principles governing the award of costs in a proceeding that has been discontinued by the plaintiff, and whether the Associate Judge had erred in his exercise of discretion in determining the issue of costs. The court found that the Associate Judge had taken into account irrelevant considerations in his decision, and that the issue of costs should be reconsidered. The court concluded that the trustees were justified in issuing the proceeding, and Maria was justified in refusing to execute the transfer of the property until the issue of the indemnity had been resolved. The application for review was dismissed, and costs were to follow the event in the usual way, with the respondent entitled to costs on a category 2B basis together with disbursements as fixed by the Registrar.

Orders