Harrison v Frieswijk - [2014] NZHC 2791

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-4089 [2014] NZHC 2791

UNDER Section 339 Property Law Act 2007

BETWEEN

DONALD ALEXANDER HARRISON Plaintiff

AND

WILHELMUS JOHANNES FRIESWIJK Defendant

Hearing: 3 October 2014

Appearances:

B P Molloy for Plaintiff
R D Butler for Defendant

Judgment:

11 November 2014

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 11 November 2014 at 2 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date: ...................................

Solicitors: Haigh Lyon, Auckland
Greenwood Roche Chisnall, Auckland

Counsel: R D Butler, Auckland

HARRISON v WILHELMUS JOHANNES FRIESWIJK [2014] NZHC 2791 [11 November 2014]

[1] This judgment determines an application for costs following discontinuance of the proceeding. Each party seeks an award of costs against the other.

Background

[2] The Plaintiff (“executor”) is the executor of the estate of John Frieswijk

(“deceased”).

[3] The deceased owned a half share in land situated on Great Barrier Island (“the land”). The Defendant (“Mr Frieswijk”), the deceased’s father, owned the other half share. By his will the deceased appointed Mr Frieswijk an executor of the estate, an appointment Mr Frieswijk resigned.

[4] The executor wished to sell the estate’s half share in the land. Mr Frieswijk did not wish to sell his half share. The executor commenced proceedings seeking an order for sale of the land and division of the proceeds of sale, pursuant to s 339
Property Law Act 2007.

[5] The executor sought summary judgment on the claim. By judgment dated

9 December 2013, Gilbert J refused summary judgment and reserved costs.1

[6] Mr Frieswijk commenced attempts to sell the land to a third party after the application for summary judgment was dismissed.

[7] The proceeding was set down for a two day hearing on 16 June 2014.

[8] On or about the date of trial the parties entered into an agreement to sell the land to third parties. The executor filed a notice of discontinuance on 14 July 2014, with costs left at large. The parties have since filed memoranda and I have heard from counsel.

[9] The costs in issue comprise:

(a) costs on the application for summary judgment; and

1 Harrison v Friewijk [2013] NZHC 3267.

(b) the costs otherwise incurred in the proceeding.

Defendant’s memorandum

[10] Mr Frieswijk seeks costs of $6,268.50 on the application for summary judgment, these costs being calculated on a 2B basis. Mr Frieswijk submits that he is entitled to costs because he was the successful party and because the summary judgment procedure is inappropriate per se to resolve a contested application pursuant to s 339.

[11] Mr Frieswijk also seeks the costs of steps taken in the proceeding following a without prejudice letter to the executor dated 11 June 2014.

Plaintiff ’s memorandum

[12] The executor submits that costs on the application for summary judgment should lie where they fall. The executor seeks an award of costs on the balance of the proceeding.

Decision

Summary judgment

[13] I am satisfied 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 Harrison v Frieswijk

Details

AGLC: Harrison v Frieswijk [2014] NZHC 2791
Case: [2014] NZHC 2791
Decision Date: 11 November 2014

CaseChat Overview and Summary

This case concerns an application for costs following the discontinuance of a proceeding between Donald Alexander Harrison, the executor of the estate of John Frieswijk, and Wilhelmus Johannes Frieswijk. The dispute centered on the sale of a half-share in land on Great Barrier Island, with the executor seeking an order for sale and division of the proceeds, while Frieswijk opposed the sale. The executor had previously sought summary judgment, which was denied, leading to a two-day hearing. The parties subsequently agreed to sell the land to third parties, prompting the executor to file a notice of discontinuance. Both parties sought an award of costs against the other.

The legal issues before the court involved whether Frieswijk was entitled to costs on the application for summary judgment, as well as the costs incurred in the proceeding following the discontinuance. Frieswijk argued that he should receive costs on the summary judgment application as he was the successful party and that the summary judgment procedure was inappropriate for resolving contested applications under section 339 of the Property Law Act 2007. The executor contended that the costs on the summary judgment application should lie where they fall and sought an award of costs for the balance of the proceeding.

Justice Peters ruled that Frieswijk was entitled to costs on the application for summary judgment as he was the successful party, and there were no grounds to deviate from the usual rule that costs follow the event. However, the court found that Frieswijk’s opposition to the summary judgment application lacked merit. Regarding the costs incurred in the proceeding after the discontinuance, the court concluded that neither party acted unreasonably in declining each other's offers and thus found no grounds for awarding costs on this basis. The court ordered that costs and disbursements on the balance of the proceedings should lie where they fall.

The final order mandated that the plaintiff, Donald Alexander Harrison, pay costs of $6,268.50 to the defendant, Wilhelmus Johannes Frieswijk, for the summary judgment application. Costs and disbursements for the balance of the proceeding were to lie where they fell.

Orders