Davis v Mancer - [2015] NZHC 3351

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-000687 [2015] NZHC 3351

BETWEEN
KARLEEN ITA DAVIS

First Plaintiff

TANYA MARIE SMART Second Plaintiff

TONI WILLIAMS MANCER Third Plaintiff

AND

KERRY JOHN MANCER First Defendant

KEITH WILLIAM YOUNG and CAROL ANN CAULFIELD

Second Defendants

On thepapers:

Appearances:

P Craighead for the Plaintiffs
No appearance by or on behalf of the First Defendant
P Napier for Second Defendants

Judgment:

21 December 2015

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Monday, 21 December 2015 at 1:00 p.m., pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Alistaire Hall, Solicitor, Manukau City
Keegan Alexander, Auckland
Counsel:
P Craighead, Manukau City

DAVIS & ORS v MANCER & ORS [2015] NZHC 3351 [21 December 2015]

Introduction

[1] In a judgment dated 30 November 2015, I declined to strike out an application for a novel duty of care in tort between solicitors for an estate and the beneficiaries of that estate.1 In that judgment, I stated that costs should follow the event.

[2] However, the second defendants now seek reduced costs, on the basis that the plaintiffs’ success was based on being granted an indulgence in re-pleading their statement of claim, warranting lesser costs.

Submissions

[3] The defendants submit that in Sew Hoy & Sons Ltd (In Receivership and in Liquidation) v Coopers & Lybrand, the Court of Appeal directed that costs were to be costs in the cause, meaning that the ultimate victor at trial would receive costs rather than costs being granted at the strike-out stage.2

[4] They further point to Belgrave Finance Ltd (in req and in liq) v Schofield, in which Associate Judge Matthews allowed a modest reduction in costs to account for the direction of the court that a repleading be allowed.3

[5] However, I note that in Belgrave Finance itself, the Court stated that Sew Hoy, on which the defendants rely here, could not give any assistance in determining the appropriate costs award given it was decided under an old costs regime, and the presumption under the applicable r 14.8(1) was that “costs must be fixed and become payable when fixed, unless there are special reasons to the contrary”. Associate Judge Matthews therefore rejected submissions based on that case.

[6] Further, in Belgrave, the Court noted that it is an established principle that “if a pleading can be appropriately amended, amendments should be permitted,” and
stated that defendants should consider this when bringing an application to strike

1      Davis v Mancer [2015] NZHC 3005.
2      Sew Hoy & Sons Ltd (In Receivership and in Liquidation) v Coopers & Lybrand [1996] 1 NZLR
392 at 401.
3      Belgrave Finance Ltd (in rec and in liq) v Schofield HC Auckland CIV-2011-404-3155, 20
November 2012.

out.4 While in that context, the Associate Judge was commenting on the fact that the precise defect with the pleadings had not been identified by the defendants, to allow the plaintiffs to amend their statement 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 Davis v Mancer

Details

AGLC: Davis v Mancer [2015] NZHC 3351
Case: [2015] NZHC 3351
Decision Date: 21 December 2015

CaseChat Overview and Summary

The case of Davis v Mancer, which was heard in the High Court of New Zealand in Auckland, involved the plaintiffs, Karleen Ita Davis, Tanya Marie Smart, and Toni Williams Mancer, who brought an action against the defendants, Kerry John Mancer, Keith William Young, and Carol Ann Caulfield. The plaintiffs sought a novel duty of care in tort between the solicitors for an estate and the beneficiaries of that estate. The second defendants, Young and Caulfield, sought reduced costs on the basis that the plaintiffs' success was based on being granted an indulgence in re-pleading their statement of claim, warranting lesser costs.

The legal issues that the court had to decide were whether the grant of an indulgence in re-pleading the statement of claim warranted a reduction in costs and whether the general principle that the determination of costs should be predictable and expeditious should be overridden in this case. The court examined the applicable rules and precedents, including Sew Hoy & Sons Ltd (In Receivership and in Liquidation) v Coopers & Lybrand, Belgrave Finance Ltd (in rec and in liq) v Schofield, and Cunningham v Butterfield. The court also considered the circumstances of the case, including the professional and prompt conduct of both parties.

The court found that the grant of an indulgence in re-pleading the statement of claim did not automatically render costs appropriate. Instead, the court had to assess entitlement to costs by weighing up the indulgence received against the success in the litigation and the overall behaviour of the parties in the litigation. The court also noted that the general principle that the determination of costs should be predictable and expeditious should not be overridden unless there were special circumstances. In this case, the court found that there were no special circumstances that warranted overriding the general principle.

In conclusion, the court ordered that the plaintiffs were entitled to 2B costs. The court rejected the second defendants' application for reduced costs, finding that the plaintiffs were successful and prima facie entitled to costs, and that there were no special circumstances that warranted overriding the general principle that the determination of costs should be predictable and expeditious.

Orders