Downey v Quirk - [2023] NZHC 2810

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-000737

[2023] NZHC 2810

IN THE MATTER of the estate of PETER EDWARD CULMER READ

BETWEEN

RICHARD WILLIAM DOWNEY as the

trustee of ST JOHN’S TRUST Plaintiff

AND

TREVOR KINRED QUIRK as trustee and executor of the estate of PETER EDWARD CULMER READ

Defendant

Hearing: On the papers

Counsel:

R W Downey in person

K W Clay for T K Quirk (proposed Second Defendant), R P Read (proposed Fourth Defendant), G F Rhodes and Independent Trustees (Canterbury) Ltd as trustees of the Resonia Family Trust (proposed Fifth Defendants), Layburn Hodgins Ltd (proposed

Sixth Defendants), and D K Quirk, J B Abbott, D A MacIntyre and S L Tait (proposed Seventh Defendants)

M O Robertson for H van Schreven (proposed Third Defendant)

Judgment:

6 October 2023

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

(Costs)

This judgment was delivered by me on 6 October 2023 at 3.45 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

DOWNEY v QUIRK [2023] NZHC 2810 [6 October 2023]

[1] On 3 August 2023, I heard an application by Mr Downey for leave to file a third amended statement of claim adding new causes of action and joining six further defendants after the close of pleadings date. The proposed defendants opposed the application.

[2] Towards the conclusion of the hearing, Mr Downey raised the possibility that he might withdraw the application. I was not prepared to allow him to do so until he had time to consider his position overnight. I reserved my decision on Mr Downey’s application to give him the time to consider the matter, having drawn to his attention the possibility that if he withdrew the application the proposed defendants might seek costs.

[3] On 4 August 2023, Mr Downey emailed the Court that he wished to withdraw his application as far as the proposed third amended statement of claim sought to add new causes of action and new parties, but he still wished to amend his claim as it related to existing causes of action against the defendant, Mr Quirk (in his capacity as executor of the estate of Peter Read).

[4] Having received that advice from Mr Downey, I issued a minute recording that his application was withdrawn and directing the filing of submissions on costs. I also made directions concerning the filing of a third amended claim against the defendant in respect to the existing causes of action.

[5] The directions in relation to costs required the proposed defendants to file their submissions by 11 August 2023, and Mr Downey had until 1 September 2023 to file any reply submissions.

[6] The proposed defendants filed their submissions seeking costs in accordance with the timetable. Mr Downey did not comply with the timetable, but due to his ongoing health issues he sought and was granted two extensions of time to file his submissions. The second extension gave Mr Downey until 20 September…

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 Downey v Quirk

Details

AGLC: Downey v Quirk [2023] NZHC 2810
Case: [2023] NZHC 2810
Decision Date: 6 October 2023

CaseChat Overview and Summary

In the case of Downey v Quirk, the plaintiff, Richard William Downey, as trustee of St John's Trust, sought leave to file a third amended statement of claim adding new causes of action and joining six further defendants after the close of pleadings date. The defendant, Trevor Kinred Quirk, as trustee and executor of the estate of Peter Edward Culmer Read, opposed the application. The legal issues involved whether the proposed defendants were entitled to costs for opposing the application, and if so, the quantum of the awards.

The court determined that the proposed defendants were entitled to their costs as they had been entirely successful in opposing the application. The court found that the application was irregular procedurally, lacked merit, and should not have been made. The plaintiff made allegations of dishonest conduct without a reasonable factual foundation, and the application was unnecessary as the claim was adequately set out in the second amended statement of claim. The court concluded that the proposed defendants were entitled to an uplift on scale costs due to the plaintiff's failure to comply with directions of the Court and pursuing the application despite it lacking merit.

The court awarded the proposed defendants 2B scale costs with a 20 per cent uplift, totaling $10,611.60 for the second defendant and $11,758.80 for the third defendant, together with disbursements as fixed by the Registrar.

In conclusion, the court granted the proposed defendants their costs and ordered the plaintiff to pay the awarded amount. The court emphasized the importance of adhering to court processes and the consequences of making irregular and meritless applications.

Orders