Brown v Sweeney - [2023] NZHC 1049

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2018-404-002663

[2023] NZHC 1049

UNDER the Property Law Act 2007

IN THE MATTER

of an application on notice for orders of sale of properties pursuant to s 339 of the Property Law Act 2007

BETWEEN

DAVID JOHN BROWN

First Plaintiff

AND

TEDDY TRUSTEES LIMITED

Second Plaintiff

AND

DANA MAUREEN ANNE SWEENEY

Defendant

Hearing: 24 April 2023

Appearances:

D W Grove for the Plaintiffs

P J Stevenson for the Defendant

Judgment:

4 May 2023

JUDGMENT OF TAHANA J

(Distribution of funds and costs)

This judgment was delivered by me on 4 May 2023 at 4.00pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:
Vodanovich Law Ltd, Auckland D Grove, Auckland
Sellar Bone & Partners, Auckland P J Stevenson, Barrister, Auckland

BROWN v SWEENEY (Distribution of funds and costs) [2023] NZHC 1049 [4 May 2023]

Introduction

[1] Mr David Brown and Teddy Trustees Ltd (Teddy Trust) (together, the plaintiffs) apply for distribution of funds from the sale of six properties. The funds are held in the trust account of Carson Fox Legal.

[2] Ms Dana Sweeney, the defendant and daughter of Mr Brown, applies for orders to the effect that Teddy Trust is estopped from recovering penalty interest in relation to a mortgage dated 29 January 2004 (the mortgage).

[3] At the hearing, the parties agreed that Ms Sweeney’s application could be resolved by allocating 50 per cent of the penalty interest to each of Ms Sweeney and the plaintiffs. I make orders accordingly.

[4]The outstanding issues between the parties are:

(a)Whether the plaintiffs are entitled to a credit of $19,897.00 for remediation expenditure in relation to 26B Sefton Ave, Grey Lynn.

(b)Whether Ms Sweeney should be liable for all the expert’s costs.

(c)Whether the plaintiffs are entitled to costs on a 2B basis for the proceeding, the application for distribution, and Ms Sweeney’s application in relation to penalty interest.

[5] Mr Matthew Kemp has prepared an expert accounting report recommending a distribution of funds as between the parties. That report includes a credit to the plaintiffs for remediation expenditure in the amount of $19,897.00.

Remediation costs

[6] The amount of $19,897.00 is taken from a statement from the solicitors for the Teddy Trust, Foy & Halse. Mr Halse wrote to Ms Sweeney on 9 October 2014 informing her that:

You wanted to know why you haven’t had any help with 28B. With respect, I attach a schedule of payments that have been paid on your behalf from my trust account. We have paid $19,896.83 either to you personally or to a builder as requested. We have also paid $23,846.44 to your barrister.

[7] The attached statement referred to in the above letter is entitled “DRUG OFFENCES” and specifies a payment of $10,744.22 to Ms Sweeney and a payment of $9,152.61 to ECR Trading Ltd. It is accepted that the payment to ECR Trading Ltd relates to remediation…

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 Brown v Sweeney

Details

AGLC: Brown v Sweeney [2023] NZHC 1049
Case: [2023] NZHC 1049
Decision Date: 4 May 2023

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, David John Brown and Teddy Trustees Ltd brought an application for the distribution of funds from the sale of six properties held in trust by Carson Fox Legal. The defendant, Dana Maureen Anne Sweeney, opposed the application and sought orders preventing Teddy Trustees Ltd from recovering penalty interest in relation to a mortgage. The parties agreed to allocate 50% of the penalty interest to each party. The court had to decide three issues: whether the plaintiffs were entitled to a credit of $19,897.00 for remediation expenditure, whether Ms Sweeney should be liable for all the expert’s costs, and whether the plaintiffs were entitled to costs on a 2B basis for the proceeding, the application for distribution, and Ms Sweeney’s application in relation to penalty interest.

The court found that the plaintiffs were only entitled to a credit of $9,152.61 for remediation costs, as they could not prove that the $10,744.22 was for remediation expenses. The expert’s costs were to be borne equally between the parties, as the expert was appointed by consent of both parties, and the appointment has assisted both parties and the Court in narrowing the issues and determining how to distribute the funds. The court also found that costs should lie where they fall, as both parties have been successful on one application each.

The court made the following orders: the further invoices of the expert are to be paid from the funds held on trust before any distribution to the parties; the allocation of distribution funds is to be in accordance with Schedule One of the expert’s affidavit, subject to the adjustments; the expert’s costs are to be borne equally between the parties; and the costs of the two applications and the proceeding are to lie where they fall.

Orders