Halliday v Hannah - [2022] NZHC 3570

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-2343

[2022] NZHC 3570

IN THE MATTER of the Trusts Act 2019 and the Land Transfer Act 2017

BETWEEN

KERRI-ANN MAREE HALLIDAY

Plaintiff

AND

SHANE CHRISTOPHER HANNAH

First Defendant

JASON HANNAH

Second Defendant

Hearing: On the papers

Counsel:

N Woods for the Plaintiff

M Phillips for the First Defendant
GTB Coleman for the Second Defendant

Judgment:

20 December 2022

COSTS JUDGMENT OF ASSOCIATE JUDGE SUSSOCK

This judgment was delivered by me on 20 December 2022 at 3pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Rice Craig, Auckland
Vicki Ammundsen Trust Law Ltd, Auckland Lance Lawson Ltd, Rotorua

HALLIDAY v HANNAH [2022] NZHC 3570 [20 December 2022]

Introduction

[1] In my decision dated 19 August 2022, I dismissed the plaintiff’s application for summary judgment. I asked the parties to confer and attempt to reach agreement, recording my preliminary view that the defendants were entitled to costs. If agreement could not be reached, memoranda were to be filed.1

[2]Agreement has not been reached and memoranda have now been filed.

[3] The first defendant seeks an order for increased or indemnity costs against the plaintiff, setting out actual costs and disbursements of $28,521.25, as evidenced by invoices attached to the first defendant’s submissions.

[4] The second defendant seeks an order for increased costs and disbursements with an uplift of 25 per cent in the amount of $14,939.50 plus disbursements of $160.

[5] The plaintiff resists costs awards being made now on the basis that costs are usually reserved on unsuccessful summary judgment applications pending a final determination of the proceeding as a whole. Counsel for the plaintiff submits that costs are only awarded against the plaintiff where the Court considers the plaintiff should have realised an application for summary judgment could not possibly be merited.

[6] I set out the relevant costs principles below before applying them to the circumstances of this case.

Relevant costs principles

[7] Rule 14.1 of the High Court Rules 2016 confirms that “all matters are at the discretion of the Court if they relate to costs …”. The discretion vested by r 14.1 is wide but must be exercised subject to the general principles in r 14.2. The first principle set out in r 14.2 is that the party who fails with respect to a proceeding or interlocutory application should pay costs to the party who succeeds. Rule 14.8 further provides:

1 Halliday v Hannah [2022] NZHC 2066.

14.8 Costs on Interlocutory Applications

(1)Costs on an opposed interlocutory application, unless there are special reasons to the contrary,—
(a)must be fixed in accordance with these rules when the application is determined; and
(b)become payable when they are fixed.

(2)Despite subclause (1), the court may reverse, discharge, or vary an order for costs on an interlocutory application if satisfied subsequently that the original order should not have been made.
(3)This rule does not apply to an…

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 Halliday v Hannah

Details

AGLC: Halliday v Hannah [2022] NZHC 3570
Case: [2022] NZHC 3570
Decision Date: 20 December 2022

CaseChat Overview and Summary

In the case of Halliday v Hannah, the plaintiff, Kerri-Ann Halliday, sought an order for the sale of a property and for an equal division of the sale proceeds with the second defendant, Shane Christopher Hannah. The first defendant, Jason Hannah, is the plaintiff's former relationship partner and the brother of the second defendant. The plaintiff's claim is based on a deed of bare trust entered into in 2010, whereby the first defendant held the plaintiff's half share of the property on a bare trust. In 2021, the first defendant transferred his interest in the property to the second defendant without the plaintiff's consent. The defendants argued that the trust deed did not anticipate the Trust would continue when the parties were living apart, and there was no provision for the allocation of post-separation contributions or how the net proceeds of sale or refinancing should be determined in the event of separation.

The legal issues in this case were whether the court should fix costs on the plaintiff's unsuccessful application for summary judgment and whether the plaintiff ought to have known that summary judgment was not appropriate. The court considered the relevant costs principles, including the fact that costs on an opposed interlocutory application must be fixed when the application is determined. However, the court recognised that it may be appropriate to depart from this approach in particular cases where the plaintiff should have known that summary judgment was not appropriate. The court also noted that it may be difficult to determine who should pay costs until the litigation is completed, and that even an unsuccessful application may ultimately prove beneficial to the parties in efficiently resolving the dispute.

After considering the submissions of the parties and the relevant authorities, the court held that costs on the plaintiff's application for summary judgment were reserved until after determination of the substantive proceeding. The court found that it was not appropriate to order costs against the plaintiff at this stage as the case may not be in the class of case where the plaintiff ought to have realised summary judgment was not appropriate. The court also noted that the application may have assisted in refining the issues between the parties, and that the judge who hears the substantive proceeding will be in the best position, after hearing all of the evidence, to determine how costs should be awarded in respect of the summary judgment application. The court also declined to make a costs order in respect of the costs memorandum filed by the plaintiff.

In conclusion, the court reserved costs on the plaintiff's application for summary judgment until after determination of the substantive proceeding. The court found that the plaintiff's application for summary judgment was not in the class of case where the plaintiff ought to have realised summary judgment was not appropriate, and that the application may have assisted in refining the issues between the parties. The court also noted that the judge who hears the substantive proceeding will be in the best position to determine how costs should be awarded in respect of the summary judgment application. The court declined to make a costs order in respect of the costs memorandum filed by the plaintiff.

Orders