Fraser v Fraser - [2017] NZHC 1307

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-2987 [2017] NZHC 1307

UNDER
Section 22 of the Trans-Tasman

Proceedings Act 2010

IN THE MATTER

of an application for stay

BETWEEN

ROBERT LINDSAY FRASER AND GENENE FLORENCE FRASER Plaintiffs

AND

ROBERT WILLIAM FRASER AND DEBORAH JEAN FRASER Defendants

Hearing: On the papers

Counsel:

CR Andrews for plaintiffs
GA Cooper for defendants

Judgment:

14 June 2017

JUDGMENT OF FITZGERALD J [As to costs]

This judgment was delivered by me on 14 June 2017 at 4 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: McVeagh Fleming, Auckland
Cavell Leitch, Christchurch

Fraser v Fraser [2017] NZHC 1307 [14 June 2017]

Introduction

[1] On 19 May 2017, I gave judgment granting the defendants’ application to stay these proceedings pursuant to s 22 of the Trans-Tasman Proceedings Act 2010 (“Act”). At the conclusion of my judgment, I indicated my preliminary view that the defendants were entitled to costs on a 1A basis. I noted that if the parties were not able to agree costs, memoranda were to be filed, upon which I would determine costs on the papers.

[2] The parties have been unable to agree costs. This judgment therefore determines the basis upon which the plaintiffs ought to pay the defendants’ costs of this proceeding.

Background

[3] The background is fully set out in my judgment dated 19 May 2017.1 In short, the plaintiffs, who reside in Warkworth, Auckland, commenced proceedings in the Auckland High Court against the defendants, who reside in Perth, Australia. The underlying dispute concerns advances of moneys by the plaintiffs to the defendants. The plaintiffs claim approximately NZ$286,000 which they say remains outstanding to them pursuant to a “loan transaction” between the parties. The defendants deny that any amounts remain outstanding. The defendants say that the arrangement between the parties was a partnership and that all funds due and owing to the plaintiffs upon the winding up of that partnership have been paid. The defendants further say that on a proper accounting of the partnership, they have actually paid too much to the plaintiffs, and have flagged that a counterclaim for the alleged overpayment may be brought.

[4] As I made clear in my judgment dated 19 May 2017, it is neither possible nor appropriate for me to make any findings on the merits of the parties’ respective positions. However, on the stay application, and taking into account those factors to which I must have regard pursuant to s 24(2) of the Act, I found that, while the
matter was relatively finely balanced, the Australian courts are the appropriate forum

1 Fraser v Fraser [2017] NZHC 1055.

in which these proceedings ought to be determined. On that basis, I granted the application for a stay.

Costs – categorisation of the proceeding

[5] As noted, at the conclusion of my judgment, I had indicated a preliminary view that the plaintiffs ought to pay the defendants’ costs on a 1A basis. My initial view that…

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 Fraser v Fraser

Details

AGLC: Fraser v Fraser [2017] NZHC 1307
Case: [2017] NZHC 1307
Decision Date: 14 June 2017

CaseChat Overview and Summary

In Fraser v Fraser, the plaintiffs, Robert Lindsay Fraser and Genene Florence Fraser, sought a stay of proceedings in the Auckland High Court against the defendants, Robert William Fraser and Deborah Jean Fraser. The plaintiffs, residents of Auckland, New Zealand, claimed approximately NZD 286,000 from the defendants, who reside in Perth, Australia. The dispute centred around alleged outstanding funds from a loan transaction between the parties. The defendants argued that the arrangement was a partnership and that all due funds had been paid. The defendants also indicated that they may bring a counterclaim for overpayment.

The legal issue before the court was whether the proceedings should be stayed in favour of the Australian courts, as well as the appropriate costs to be awarded. The court found that the Australian courts were the appropriate forum for the dispute and granted the defendants' application for a stay. The court also had to determine the appropriate costs to be awarded between the parties.

The court categorised the proceeding as a category 1 proceeding, as the issues involved were fairly narrow and not particularly complex. The court rejected the defendants' argument that the proceeding warranted a categorisation as a category 2 proceeding, as the nature of the proceeding itself was an application pursuant to the Trans-Tasman Proceedings Act 2010. The court found that the proceeding did not give rise to any real complexity or detailed legal analysis.

The court also found that the defendants were not entitled to an increase in costs from scale costs, as the three reasons presented by the defendants did not warrant such an increase. The court concluded that the plaintiffs' refusal to engage with the defendants prior to commencing proceedings, their refusal to accept the Australian courts as the appropriate forum, and the raising of irrelevant issues on the stay application did not justify an award of increased costs.

Finally, the court ordered that the plaintiffs pay the defendants' costs on a 1B basis, as set out in the schedule attached to the judgment. The court also ordered that the defendants pay the plaintiffs' costs of preparing the costs memorandum on a 1B basis.

In summary, the court granted the defendants' application for a stay, categorised the proceeding as a category 1 proceeding, and ordered that the plaintiffs pay the defendants' costs on a 1B basis. The court rejected the defendants' claim for increased costs and ordered the defendants to pay the plaintiffs' costs of preparing the costs memorandum on a 1B basis.

Orders