Edmonds v Holland - [2021] NZHC 504

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-001820

[2021] NZHC 504

UNDER Section 339 of the Property Law Act 2007

BETWEEN

JUAN RICARDO EDMONDS

Plaintiff

AND

ANNE HELEN HOLLAND

Defendant

Hearing: (On the papers)

Counsel:

Rajiv Rao for the Plaintiff Deepal Kumar for the Defendant

Judgment:

15 March 2021

[COSTS] JUDGMENT OF MOORE J

This judgment was delivered by me on 15 March 2021 at 11:00 am pursuant to Rule 11.5 of the High Court Rules.

Registrar / Deputy Registrar Date:

EDMONDS v HOLLAND [2021] NZHC 504 [15 March 2021]

Introduction

[1] On 11 February 2021, I made orders by consent for the sale of a property in Pakuranga Heights (“the Property”) jointly owned by the parties under s 339 of the Property Law Act 2007.1

[2] I reserved the issue of costs and in accordance with my directions, Juan Edmonds, the plaintiff, filed a memorandum seeking scale costs on a 2A basis of
$4,780.00, together with a sole disbursement of $1,350.00.

Background

[3] Mr Edmonds and his mother Anne Holland, the respondent, lived in the Property as joint tenants until their relationship broke down irrevocably in June 2020. Mr Edmonds sought to sell his half share in the Property to Ms Holland. He also gave Ms Holland the opportunity to buy his share or consent to the sale of the Property. Ms Holland purportedly agreed to sell the Property but was dilatory in taking the necessary steps to effect sale. Mr Edmonds believed the only way to achieve the sale was by an order of the Court.

[4] Ms Holland accepted that joint ownership of the Property was no longer tenable and that the Property had to be sold as neither party had the financial means to purchase the other party’s share. Ms Holland’s dispute was solely with the conditions of sale and the timeframe.

[5] The claim was scheduled to be heard on 3 May 2021. However, prior to that, the parties filed a joint memorandum on 11 February 2021 seeking entry of orders by consent. The parties reached settlement on all matters except costs. In accordance with my orders, they have filed memoranda on costs.

1 Edmonds v Holland HC Auckland CIV-2020-404-1820, 11 February 2021 (Minute of Moore J Civil List Judge (Dealt with on papers)).

Principles

[6] The principles relating to costs are set out Part 14 of the High Court Rules 2016 (“the Rules”), with the general principles set out at r 14.2. The starting point is that generally “the party who fails with respect to a proceeding or interlocutory application should pay costs to the party who succeeds”,2 and that “so far as possible the determination of costs should be predictable and expeditious.”3 Rule 14.7 sets out the circumstances in which a Court may reduce or refuse an order for costs. Rule 14.7(g) is a “catch-all” exception which allows Courts to reduce or refuse to award costs where a good reason has been…

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 Holland

Details

AGLC: Edmonds v Holland [2021] NZHC 504
Case: [2021] NZHC 504
Decision Date: 15 March 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Juan Ricardo Edmonds filed a claim against Anne Helen Holland for the sale of a jointly owned property in Pakuranga Heights. The case was heard by Judge Moore. The parties had been joint tenants of the property until their relationship broke down, prompting Edmonds to seek a sale of his half share. Holland agreed to the sale but was slow to act, leading Edmonds to seek court intervention. The court reserved the issue of costs and, after the parties reached a consent order for the sale of the property, filed a memorandum seeking scale costs on a 2A basis.

The legal issue before the court was whether costs should be awarded to Edmonds, the plaintiff, based on the consent orders for the sale of the property. The court considered the principles relating to costs as set out in Part 14 of the High Court Rules 2016. The general principle is that the party who fails with respect to a proceeding or interlocutory application should pay costs to the party who succeeds. However, the court may reduce or refuse an order for costs if there is a good reason to depart from the general principles. The court also considered the circumstances of the case, including the financial means of the parties and whether the proceedings were necessary.

The court found that Holland had offered no alternative conditions or timeframe to those proposed by Edmonds, and that the draft orders contained in the joint memorandum of counsel were broadly consistent with those in Edmonds' statement of claim. The court also found that Holland's submission of limited financial means was of limited relevance in the absence of evidence to support her submission. The court further noted that any award of costs would be deducted from the net sale proceeds of the property, which would be sold at auction with a reserve of $1.2 million. Therefore, the court concluded that it was unlikely an award of costs would cause Holland financial hardship.

The court awarded costs to Edmonds on a 2A basis and allowed him to recover this amount, and the disbursement, from Holland's share of the net sale proceeds pursuant to the orders for sale. The court did not make any further orders.

Orders