Chamberlain v Chamberlain

[2022] NZHC 3121

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CIV-2022-476-21

[2022] NZHC 3121

BETWEEN

KENNETH IAN CHAMBERLAIN

Plaintiff

AND

COLIN DALLAS CHAMBERLAIN

Defendant

CIV-2022-476-22

UNDER

Section 19 Administration Act 1969

IN THE MATTER

of the Will of UNA MARION CHAMBERLAIN, deceased

BETWEEN

KENNETH IAN CHAMBERLAIN and BRUCE ALAN CHAMBERLAIN

Plaintiffs

AND

COLIN DALLAS CHAMBERLAIN

Defendant

Hearing:	(On the papers)
Appearances:	K W Clay for Plaintiffs G Jones for Defendants
Judgment:	28 November 2022

JUDGMENT OF ASSOCIATE JUDGE LESTER

(Costs)

CHAMBERLAIN v CHAMBERLAIN [2022] NZHC 3121 [28 November 2022]

[1]                 These proceedings involve an unfortunate dispute between brothers, Kenneth and Colin, following the death of their mother, Una Chamberlain.

[2]                 The proceeding between Kenneth and Colin involved an injunction application. The injunction was sought because Kenneth and his late mother owned  a property together in Waimate. Kenneth remained in occupation of the property pursuant to a lease dated 13 December 2017, following the death of his mother on  11 July 2019. In March 2022, Colin disconnected Kenneth’s electric fence on the property, installed a gate on the property and put 12 cattle in three paddocks subject to the lease. Colin refused to remove the cattle and Kenneth sought an injunction. Kenneth’s affidavit records he had sought the intervention of the Police to resolve the situation but to no avail. Similarly, to no avail, was correspondence between the parties’ solicitors.

[3]                 Prior to the first call of the injunction application, Colin, through counsel, advised that he would, on a without admission of liability basis, give an undertaking to the Court in terms of the injunction application. That undertaking was given thereby overtaking the injunction.

[4]That left Kenneth’s application for damages and costs.

[5]                 The quantum of Kenneth’s damages claim for trespass to land is $12,475 plus GST. While liability in respect of trespass has not been established, I am satisfied that costs in respect of the injunction application should be determined now. The reality is, it took an application to the Court to have the situation rectified. While the undertaking was expressly given without admission of liability and a statement of defence had been filed in which Colin denies liability, nonetheless, the injunction obtained the relief sought by Kenneth. Costs on interlocutory applications are, unless there are special reasons, to be fixed when the application is determined.1 An interlocutory application may be determined either by decision of the Court or by another mechanism such as agreement of the parties or withdrawal by leave.2 While the undertaking was given on a no admission of liability basis, in substance the

1      High Court Rules 2016, r 14.8(1).

2      Robert Osborne (ed) McGechan on Procedure (online ed, Thomson Reuters) at [HR14.8.02].

injunction application was determined in Kenneth’s favour by the undertaking being offered by Colin and accepted by Kenneth.

[6]                 That leaves the issue of whether there is an actionable trespass.  I am not  in  a position to determine that in a costs application. I do not agree, however, that if the application for damages in respect of the trespass is transferred to the District Court, that the Court should fix costs for the entire proceeding as submitted by Mr Jones, counsel for Colin. What is clear is that a claim for just over $12,000 should not be dealt with in the High Court.

[7]                 In relation to proceeding CIV-2022-476-21, there is an order that Colin is to pay to Kenneth costs on a 2B basis in relation to the injunction application, the affidavit filed in support of the application and the memoranda of counsel leading up to the telephone conference on 28 July 2022.

[8]                 The intent of this order is that all costs associated with the application for interim relief relating to this proceeding are fixed and payable now. If there is any issue as to what is covered by the order, counsel may revert but I would expect them to resolve the issue between them.

[9]                 As I have said, I am satisfied that costs in respect of that step should be fixed and payable now. The intervention of the Police and correspondence between the parties’ solicitors did not resolve the situation, however, the injunction application did. I have not ignored that it was on a without admission of liability basis, but I am satisfied that, but for the injunction application, Colin would have remained in occupation of the property contrary to Kenneth’s apparent rights under his lease.

[10]             As to the commencement of the proceeding, I fix those costs on a 2B basis but they are to be costs in the cause.

[11]             Proceeding CIV-2022-476-21 is now transferred to the District Court given the size of the claim. Costs for the future of the proceeding in the District Court are for that Court.

Proceeding CIV-2022-476-22

[12]             This claim arose because Colin refused to sign the Probate papers relating to his late mother’s Estate. A practical compromise was reached whereby the Public Trust was appointed in place of the named executors under the Will.

[13]             I am satisfied that Colin personally should pay the Estate’s costs in relation to this proceeding. Frankly, it seems that his stubbornness was the reason for the proceeding being brought. I agree with Mr Clay, counsel for Kenneth, that the Estate can be seen as the successful party in relation to the issue of Probate.

[14]             Mr Jones submits that the affidavit evidence does not show any refusal to apply for a grant of Probate. However, the parties’ mother died on 11 July 2019. This proceeding was issued nearly three years later because progress has not been made on resolving Probate issues.

[15]             Whatever the history of communications between the brothers, the short point is, it took the issue of proceedings to bring matters to a head and a resolution reached that should have been put in place long ago.

[16]             Colin will pay to the Estate costs on 2B basis plus disbursements as fixed by the Registrar. The Estate is authorised to deduct from Colin’s share of the Estate the value of those costs.

[17]I make no order in relation to the fixing of costs.

Associate Judge Lester

Solicitors:

RMF Silva Limited, Ashburton (for Plaintiff) Cameron & Co, Christchurch (for Defendant)

Copy to counsel:

K W Clay, Barrister, Christchurch (for Plaintiff) G Jones, Barrister, Christchurch (for Defendant)