Groombridge v Blanche - [2020] NZHC 3032

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-2033

[2020] NZHC 3032

BETWEEN
HENRY GEORGE JAMES

GROOMBRIDGE by his litigation guardian Pamela Peijie Ma

Plaintiff

AND

ELEANOR BLANCHE

Defendant

Hearing: On the papers

Counsel:

T Cai for plaintiff

P J Stevenson for defendant

Judgment:

17 November 2020

JUDGMENT OF KATZ J

[Costs]

This judgment was delivered by me on 17 November 2020 at 1:00 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Douglas Burgess, Auckland
Focus Law, Auckland

Counsel: P J Stevenson, Barrister, Auckland

GROOMBRIDGE v BLANCHE [2020] NZHC 3032 [ 17 November 2020]

Introduction

[1] Eleanor Blanche and Henry Groombridge were married on 13 March 2004. They separated on 14 March 2007, and later divorced. On 11 April 2007, they entered into a relationship property agreement pursuant to the Property (Relationships) Act 1976.

[2] In this proceeding Mr Groombridge alleges that that agreement has been breached. He seeks specific performance and damages. Because Mr Groombridge lacks capacity, his current wife, Pamela Ma, has been appointed as his litigation guardian. Ms Blanche applied unsuccessfully to the Court to remove Ms Ma as litigation guardian.1

[3] Mr Groombridge, through Ms Ma, now seeks costs on an indemnity basis or, in the alternative, an uplift on 2B scale costs of at least 100 per cent.

[4] Ms Blanche submits that 2B scale costs are appropriate. She largely accepts Mr Groombridge’s calculations of 2B scale costs, with the exception of one item. She does not accept that there is any basis for an award of indemnity costs, or any grounds for an uplift.

Are indemnity costs appropriate?

[5] Indemnity costs are generally awarded when a party has behaved extremely badly.2 They are exceptional and require exceptionally bad behaviour.3 The bad behaviour must be flagrant to justify the departure from the predictability of the Rules Committee’s costs regime.4 The Court may order indemnity costs if a party acts vexatiously, frivolously, improperly, or unnecessarily in the conduct of a proceeding,

1      Groombridge v Blanche [2020] NZHC 2394. Ms Blanche simultaneously applied for an order for security for costs, but withdrew this three weeks after making it, a week before the hearing.
2      High Court Rules 2016, r 14.6; Bradbury v Westpac Banking Corp [2009] 3 NZLR 400 (CA) at [27]-[28]; Prebble v Huata [2005] NZSC 18, [2005] 2 NZLR 467 at [6].
3      Bradbury v Westpac Banking Corp [2009] 3 NZLR 400 (CA) at [28].
4      Bradbury v Westpac Banking Corp [2009] 3 NZLR 400 (CA) at [28].

or if another reason exists justifying the award.5 The Court of Appeal recently set out the following circumstances in which indemnity costs have been granted:6

(a) the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud;

(b) particular misconduct that causes loss of time to the Court and to other parties;

(c) commencing or continuing proceedings for some ulterior motive;

(d) doing so…

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 Groombridge v Blanche

Details

AGLC: Groombridge v Blanche [2020] NZHC 3032
Case: [2020] NZHC 3032
Decision Date: 17 November 2020

CaseChat Overview and Summary

Eleanor Blanche and Henry Groombridge, who were married and later divorced, are in dispute over a relationship property agreement they entered into in 2007. Groombridge, who lacks capacity, is represented by his litigation guardian, Pamela Ma. Blanche applied to remove Ma as litigation guardian but was unsuccessful. Groombridge now seeks costs on an indemnity basis or, in the alternative, an uplift on 2B scale costs of at least 100%. Blanche argues that 2B scale costs are appropriate and largely accepts Groombridge's calculations of 2B scale costs, with the exception of one item. She does not accept that there is any basis for an award of indemnity costs, or any grounds for an uplift.

The court had to determine whether indemnity costs are appropriate, what is the appropriate level of 2B scale costs, and whether an uplift is appropriate. Indemnity costs are generally awarded when a party has behaved extremely badly. They are exceptional and require exceptionally bad behaviour. The court found that Blanche's conduct does not reach the "exceptionally bad" threshold and is therefore not sufficient to justify an award of indemnity costs. The court also found that Ma was entitled to recover costs in respect of the relevant memorandum. Cost increases above 50 per cent are rare, reflecting that the costs scale in the Rules is set on the basis that it is intended to broadly reflect two-thirds of actual and reasonable costs. The court found that the threshold for an increased costs award is not met.

Henry Groombridge is awarded 2B scale costs in the sum of $8604.00.

Orders