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Edmonds v Edmonds

Edmonds v Edmonds

Case [2023] NZHC 1680 30 June 2023

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-893

[2023] NZHC 1680

BETWEEN
DAVID IAN EDMONDS

Applicant

AND

DAVID IAN EDMONDS, SHERYL

LOUISE EDMONDS and GM LEGAL TRUSTEE LIMITED

First Respondent

AND

SHERYL LOUISE EDMONDS

First Third Party

AND

MICHAEL ROY EDMONDS AND PATRICIA ALICE EDMONDS

Interested Parties

Hearing: On the papers

Counsel/ Representation:

J E M Connell for Applicant

G A Ireland for Second Respondent

Judgment:

30 June 2023

JUDGMENT OF JOHNSTONE J

[Re: Costs]

This judgment was delivered by me on 30 June 2023 at 4.30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Connell & Connell, Auckland McVeagh Fleming, Auckland

EDMONDS v EDMONDS [2023] NZHC 1680 [30 June 2023]

Introduction

[1] David Edmonds and Sheryl Edmonds were married. They are now dividing their assets. To that end, Mr Edmonds brought an originating application for directions as to the division of their family trust’s assets. The proceeding was set down for substantive hearing before me on 28 February 2023. Just prior to the hearing commencing, the parties entered a settlement agreement. The substantive proceeding was disposed of by consent order. The terms of the settlement agreement reserved the parties’ entitlements to seek costs.

[2] The parties have now each applied for costs, both describing themselves as having succeeded. Mr Edmonds applies for standard 2B scale costs — in total,
$19,153.50 — and asks this Court to impose an uplift of 50 per cent. Ms Edmonds applies for:

(a)indemnity costs of $75,653.53; or

(b)a mixture of scale and indemnity costs amounting to $47,076.12; or

(c)a 75 per cent uplift for on standard scale costs, $22,623.80 and $14,340, respectively.

[3]The issues that must be decided are:

(a)Can the Court identify a winner?

(b)If so, are scale, increased or indemnity costs appropriate?

Background and parties’ positions

[4]There were three applications before the Court:

(a)Mr Edmonds’ application for leave to commence proceedings by originating application;

(b)Mr Edmonds’ originating application for resettlement, partition, and sale of the trust property; and

(c)Ms Edmonds’ application for referral to alternative dispute resolution (ADR).

[5]The opposing parties in each instance opposed the other parties’ application(s).

[6] There were several issues and disagreements at play. The primary issue was how to deal with main trust asset, this being the family home at 8 Shamrock Lane, Te Atatu. Both parties appear from early on to have agreed that the house should be sold, but that was about as far as any agreement went. Ms Edmonds’ position appeared to be that she would not consent to the sale of the house unless two subsidiary and related issues were addressed: the status of a loan/gift provided by her mother; and her liability to meet a judgment debt.1 Ms Edmonds argued that her mother had provided her a loan to assist with the purchase of the house, the corollary being that if it was a gift, and not a loan, the funds would have been mixed marital…

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 Edmonds v Edmonds

Details

AGLC: Edmonds v Edmonds [2023] NZHC 1680
Case: [2023] NZHC 1680
Decision Date: 30 June 2023

CaseChat Overview and Summary

David Edmonds and Sheryl Edmonds, who were married but are now in the process of dividing their assets, brought a case before the High Court of New Zealand. The case involved an originating application for directions regarding the division of their family trust's assets. Just before the hearing, the parties entered a settlement agreement, and the substantive proceeding was disposed of by a consent order, reserving the right to seek costs. The primary issue in the case was how to deal with the main trust asset, the family home at 8 Shamrock Lane, Te Atatu. Both parties agreed that the house should be sold, but there were disagreements regarding subsidiary issues such as the status of a loan/gift provided by Sheryl Edmonds' mother and her liability to meet a judgment debt. The court was required to decide whether there was an identifiable winner, and if so, whether scale, increased, or indemnity costs were appropriate. The court found that it was unclear which party succeeded as a consequence of the final settlement agreement, and that the parties were essentially asking the Court to evaluate how it would have handled the applications, which the Court would not do without the aid of substantive submissions and a hearing. Consequently, the court decided that the costs should lie where they fall, and dismissed the parties' respective applications for costs.

Orders