Cron v Tucker - [2024] NZHC 1000

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-226

[2024] NZHC 1000

BETWEEN
PENELOPE JEAN CRON, PHILIP SIMON MAUGER,

STEPHEN WARNER MAUGER and TIMOTHY JAMES MAUGER
Plaintiffs

AND

SIMON MICHAEL TUCKER

First Defendant

AND

LOUISE CORANETTA HERMANSSON

Second Defendant

Hearing: On the papers

Counsel:

S P Rennie and F H Scrase for the Plaintiff K W Clay and R Paul for the First Defendant T J Castle for the Second Defendant

Judgment:

30 April 2024

JUDGMENT OF HARLAND J

(as to costs)

Introduction

[1] This proceeding relates to the estate of the late Mr Warner Mauger who, in January 2019, executed two deeds of gift, one for $550,000 to the first defendant and another for $485,000 to the second defendant. Both defendants were employed by Mr Mauger in Rookwood Holdings Ltd (Rookwood), the vehicle through which Mr Mauger operated a highly successful contracting and property development business.

[2]The plaintiffs are Mr Mauger’s four adult children.

CRON v TUCKER [2024] NZHC 1000 [30 April 2024]

[3] The defendants applied for standard and particular discovery against the plaintiffs. I determined these applications in my judgment of 20 December 2023.1 At the end of that judgment I said:2

Costs should follow the event. The defendants have had limited success. Contemporaneous memoranda addressing costs are to be filed and served by 9 February 2024. Any response is to be filed contemporaneously by 23 February 2024.

[4] Counsel have since filed memoranda. In total, there have been eight memoranda filed outlining each party’s submissions about costs.

[5] This judgment determines costs. In it I consider which party was successful in respect of which application and to what extent.

Background

[6] The applications I determined in my judgment in December 2023 were for standard and particular discovery. Both were opposed by the plaintiffs. The hearing in respect of both applications lasted a full day.

[7] The defendants sought an order that the plaintiffs file an affidavit of documents by way of standard discovery. Ms Cron had filed an affidavit of documents, but the defendants submitted it was insufficient. Regarding that issue, I outlined the following background:

[34] A case management conference was held before Dunningham J on 22 August 2022. An issue was raised about the plaintiffs’ affidavit of documents as Ms Cron had filed it in her capacity as a litigation guardian on behalf of the late Mr Mauger.

[35] In her discussion about this issue, Dunningham J noted that counsel for the defendants were technically correct that the affidavit of documents had not been sworn on behalf of the current plaintiffs. However, she noted that, as the pleadings had not changed, there was no obvious reason to consider that the scope of discovery had changed. The Judge also noted that ongoing discovery had been provided and further relevant documents had been identified, and she observed:

1 Cron v Tucker [2023] NZHC 3815 [December judgment].
2 At [105].

The defendants have done no more than suggest…

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 Cron v Tucker

Details

AGLC: Cron v Tucker [2024] NZHC 1000
Case: [2024] NZHC 1000
Decision Date: 30 April 2024

CaseChat Overview and Summary

The case of Cron v Tucker involved a dispute over the estate of the late Mr Warner Mauger, who had executed two deeds of gift to the first and second defendants, respectively. The plaintiffs, Mr Mauger's four adult children, opposed the defendants' applications for standard and particular discovery. The court determined these applications in its earlier judgment of 20 December 2023, with the first defendant succeeding to a very limited extent on the standard discovery application and succeeding on two categories of the particular discovery application. The second defendant's application for particular discovery was partially successful. This later judgment addresses the costs associated with these discovery applications.

The primary legal issue before the court was whether costs should follow the event or if there were exceptional circumstances warranting a deviation from the usual rule. The court examined the extent of success for each party in the discovery applications, the reasonableness of the parties' conduct, and whether any party unnecessarily contributed to the time or expense of the proceedings.

The court concluded that costs should lie where they fell, meaning neither party would be awarded costs against the other. The court found that while the defendants had succeeded to some extent in their discovery applications, most of their claims were unsuccessful. The court also noted the plaintiffs' apparent delay in complying with court orders, but found that this did not necessarily justify awarding costs to the defendants. The court determined that the applications by both defendants shared a community of interest and could have been advanced together, leading to an overlap in the arguments and submissions. The court found that the importance of the discovered files did not outweigh the overall unsuccessful nature of the defendants' applications. Thus, the applications for costs by all parties were dismissed.

Orders