Eckhoff v Orbell - [2021] NZHC 1118

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2019-409-000133

[2021] NZHC 1118

BETWEEN
PHILIPPA JANE ECKHOFF

Plaintiff

AND

RUTH ALICE ORBELL

First Defendant

AND

NICOLA ALICE HYSLOP

Second Defendant

AND

WILLIAM HAMISH ORBELL

Third Defendant

AND

RUTH ALICE ORBELL and WILLIAM

HAMISH ORBELL as trustees of the Hamish Orbell Family Trust
Fourth Defendants

AND

NICOLA ALICE HYSLOP, JONATHAN ANGUS HYSLOP and QA TRUSTEES

2012 LIMITED as trustees of the Hyslop Family Trust

Fifth Defendants

AND

JOHN DUNCAN MCFARLANE

Sixth Defendant

AND

JONATHAN ANGUS HYSLOP

Seventh Defendant

Hearing: On the papers

Counsel:

D R Tobin for Plaintiff

M K Prendergast for First Defendant
M J Wallace for Second, Fifth and Seventh Defendants
S J Jamieson and J A Higby for Third and Fourth Defendants

Judgment:

19 May 2021

ECKHOFF v ORBELL [2021] NZHC 1118 [19 May 2021]

JUDGMENT OF ASSOCIATE JUDGE PAULSEN ON COSTS

This judgment was delivered by me on 19 May 2021 at 11.30 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

[1]In a judgment of 13 April 2021 I determined applications:1

(a)by the second, fifth and seventh defendants for further particulars of the statement of claim; and

(b)by the plaintiff for particular discovery from the first and second defendants.

[2] I directed counsel to confer on costs and reserved leave to file memoranda on costs if necessary.

[3] Memoranda have now been filed for the plaintiff, the first defendant and second, fifth and seventh defendants.

[4] Although Ms Jamieson and Mr Higby appeared at the hearing for the third and fourth defendants no memorandum has been filed on their behalf and it is to be inferred they do not seek costs.

The application for further particulars of statement of claim

[5] The second, fifth and seventh defendants were successful on their application for further particulars of the statement of claim. They are entitled to an award of scale 2B costs and disbursements amounting to $6,314.

The application by the plaintiff for particular discovery

The parties’ positions

[6] Both the first and second defendants claim success on this application and seek costs. The plaintiff also claims some success on the application but in recognition that her success was limited she argues costs should lie where they fall.

1 Eckhoff v Orbell [2021] NZHC 757.

Relevant principles

[7] All matters of costs are discretionary. The discretion must be exercised on a principled basis. The determination of costs, so far as possible, should be both predictable and expeditious.2

[8] The party who has lost should pay the costs of the party that has won.3 The loser pays costs unless there are exceptional reasons to the contrary.4 It is not unusual for a party bringing an application or proceeding to achieve only partial success. It has been held that the starting point in such cases is that success on more limited terms is still success.5

[9] In Emmons Developments New Zealand Ltd v Mitsui Sumitomo Insurance Co…

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 Eckhoff v Orbell

Details

AGLC: Eckhoff v Orbell [2021] NZHC 1118
Case: [2021] NZHC 1118
Decision Date: 19 May 2021

CaseChat Overview and Summary

Eckhoff v Orbell was a case heard by the High Court of New Zealand, Christchurch Registry, between Philippa Jane Eckhoff, the plaintiff, and multiple defendants, including Ruth Alice Orbell, Nicola Alice Hyslop, William Hamish Orbell, and others. The dispute primarily involved applications for further particulars of the statement of claim and for particular discovery from specific defendants. The court was required to decide on the allocation of costs related to these applications. The key legal issue was the appropriate allocation of costs for the applications, considering the principles of predictability, expedition, and the discretionary nature of cost awards. The court needed to assess whether the plaintiff had achieved any success and, if so, whether that success warranted an award of costs.

The court considered the applications separately. For the application by the second, fifth, and seventh defendants seeking further particulars of the statement of claim, the court found in their favour and awarded them scale 2B costs and disbursements amounting to $6,314. For the plaintiff's application for particular discovery from the first and second defendants, the court found that the plaintiff had achieved partial success. However, due to the manner in which the application was pursued and certain other factors, the court determined that costs should lie where they fall, meaning no party would be awarded costs. The court found that while the plaintiff had achieved some success, the partial success did not justify an award of costs to her, given the circumstances of the case.

The final orders of the court were that the second, fifth, and seventh defendants were awarded scale 2B costs and disbursements of $6,314 for their successful application for further particulars of the statement of claim. For the plaintiff's application for particular discovery, the court ruled that costs would lie where they fell, meaning no party would be awarded costs. This decision was based on the court's assessment of the overall success achieved by the plaintiff and the factors that influenced the cost of the proceeding.

Orders