Eyton v Eyton

[2020] NZHC 1538

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-17

[2020] NZHC 1538

IN THE MATTER

of s 339 of the Property Law Act 2007

BETWEEN

ANDREW CHRISTOPHER EYTON

Plaintiff

AND

VICTOR JAMES EDWARD EYTON

Defendant

CIV-2020-404-376

BETWEEN

VICTOR JAMES EDWARD EYTON and SHIRLEY PATRICIA EYTON

Plaintiffs

AND

ANDREW CHRISTOPHER EYTON

First Defendant

SARAH LISA BLACKBURN

Second Defendant

Hearing:

On the papers

Counsel:

J D Turner for the Plaintiff in CIV-2020-404-17 and the First Defendant in CIV-2020-404-376

K E Wiseman for the Defendant in CIV-2020-404-17 and the Plaintiffs in CIV-2020-404-376

Judgment:

2 July 2020

JUDGMENT OF GAULT J

(Costs)

This judgment was delivered by me on 2 July 2020 at 11:00 am pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

EYTON v EYTON [2020] NZHC 1538 [2 July 2020]

[1]                 In these two proceedings, which are being case managed together, applications for summary judgment have been withdrawn and the parties have been unable to agree on costs.

[2]                 In CIV-2020-404-17 the plaintiff, originally Mr P C Eyton,1 applied for summary judgment against his brother, Mr VJE Eyton, seeking a sale order in respect of a property in Kumeu. They were co-executors of  the  estate  of  their  mother,  Mrs Margaret Eyton, until Mr VJE Eyton renounced his executorship. Both are beneficiaries under her will.  The property is currently registered in the name of   Mrs Margaret Eyton (one-third share) and Mr VJE Eyton (two-third share).

[3]                 In CIV-2020-404-376 Mr VJE Eyton and his wife, Ms S P Eyton, sought orders against Mr A C Eyton (first defendant), as executor of the estate of Mrs Margaret Eyton, and Ms Blackburn (second defendant), in relation to ownership of the same property. Mr A C Eyton applied for defendant’s summary judgment or strike out.

[4]                 Subsequently, as recorded in my minute of 5 May 2020, Mr A C Eyton accepted that the ownership issues raised in the CIV-2020-404-376 proceeding need to be determined and indicated he would not pursue the application for summary judgment in the CIV-2020-404-17 proceeding.

[5]                 At the same time, orders were made by consent in the CIV-2020-404-376 proceeding and as a result Mr A C Eyton indicated he no longer needed to pursue his application for summary judgment or strike out in that proceeding.

[6]                 The respondent(s) in each application (Mr VJE Eyton in the CIV-2020-404-17 proceeding, and Mr VJE Eyton and Ms S P Eyton in the CIV-2020-404-376 proceeding), seek costs on a 2B basis plus “a reasonable increase” based on alleged unreasonable conduct.

1      Mr A C Eyton was subsequently named as plaintiff following Mr P C Eyton’s death.

Approach to costs

[7]                 Following unsuccessful summary judgment applications, the normal rule that costs should be fixed when an interlocutory application is determined does not apply.2 Costs are usually reserved. That is so even after a defended hearing. That practice may be departed from in appropriate cases, such as where a summary judgment application is brought in the knowledge that there is a bona fide question of fact or law which can be determined only after a trial.3

[8]                 Increased costs may be awarded where there is failure by the paying party to act reasonably.4 On an application for increased costs, the applicant must persuade the Court they are justified.

Discussion

[9]                 Ms Wiseman submits that there was no reasonable basis for believing the Court could give summary judgment in either application. She submitted in relation to the summary judgment application in the CIV-2020-404-17 proceeding that the applicant had certain knowledge there was a bona fide question to be determined. He knew the respondents were in the throes of commencing proceedings to resolve that question. He failed to refer to or consider the mandatory factors the Court must have regard to when making a sale order, including the hardship that would be caused. In this case there would have been substantial, irreversible detriment to the respondents.

[10]             I accept that the application for summary judgment was unrealistic. But in relation to the claimed basis for it being unreasonable, it is not appropriate in this case, where the application was not pursued to a hearing, to make factual findings as to the applicant’s knowledge on the basis of costs memoranda. That is all the more so because the CIV-2020-404-17 proceeding was commenced by Mr P C Eyton just before he died. I understand there is a dispute as to whether he commenced the proceeding in his capacity as sole executor of the estate of Mrs Margaret Eyton or in his personal capacity. Following Mr P C Eyton’s death, Mr A C Eyton was substituted

2      Rule 14.8(3)

3      NZI v Philpott [1990] 2 NZLR 403 (CA) at 405.

4      Rule 14.6(3); Bradbury v Westpac Banking Corporation [2009] NZCA 234, [2009] 3 NZLR 500 at [27].

as plaintiff, as administrator of Mr P C Eyton’s estate. Any costs order against the plaintiff relating to the summary judgment application should be in that capacity. But I consider the better course is to reserve costs until the litigation is determined, retaining flexibility and discretion as to how costs should be apportioned.

[11]             In relation to the defendant’s summary judgment/strike out application in the CIV-2020-404-376 proceeding, Ms Wiseman submitted there was no justification for it. The applicant could, and should, have resolved his concerns by applying to the Court for directions under s 21 of the Administration Act 1969, and asking for further particulars under r 5.21 of the High Court Rules 2016. Neither would have been opposed by the respondents, as borne out by their consent to relevant directions on   5 May 2020.

[12]             I accept that this summary judgment/strike out application was also unrealistic. Mr A C Eyton may well have been better to apply for directions under s 21. But the application was withdrawn following an order that he be replaced as executor of the estate of Mrs Margaret Eyton. Again, I consider the better course is to reserve costs.

Gault J

Solicitors / Counsel:

Mr J D Turner, McVeagh Fleming, Albany Ms K E Wiseman, Barrister, Auckland

Mr I Vodanovich (plaintiffs instructing solicitor in CIV-2020-404-376), Vodanovich Law Ltd, Kumeu Mr L Kemp, Kemp Barristers and Solicitors, Kumeu