Hillier v Whitewood - [2019] NZHC 232

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2017-463-000098

[2019] NZHC 232

BETWEEN
TRACY HILLIER, MURIWAI JONES, DAVE PETERS, ARAPETA MIO and TE AURURANGI DAVIS

Applicants

AND

VINCENT WHITEWOOD,

RAELYN RIKA, GARRY WATSON and STELLA TAKU

Respondents

Hearing: [On the Papers]

Counsel:

C G Beaumont for the Applicants C M Bidois for the Respondents

R E Schmidt-McCleave for Te Ohu Kai Moana Trustee Ltd

Judgment:

22 February 2019

JUDGMENT OF EDWARDS J

[re Costs]

This judgment was delivered by Justice Edwards on 22 February 2019 at 9.30 am, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors: Te Haa Legal Ltd, Otaki
East Brewster Ltd, Rotorua
R E Schmidt-McCleave, Wellington

HILLIER and ORS v WHITEWOOD and ORS [2019] NZHC 232 [22 February 2019]

[1] By judgment dated 9 October 2018, I determined that the Trust Deed for the Ngaitai Iwi Authority did not provide for beneficiaries to remove and appoint trustees outside the three-yearly election process provided for in Part 12 of the Trust Deed.1

[2] That judgment answered a preliminary question before trial. Subsequently, the parties agreed that the judgment disposed of the applicants’ substantive claim. Davison J made an order under r 10.19(2)(a) dismissing the whole of the applicants’ claim and entering judgment for the respondents.

[3] The respondents seek an award of costs. They seek a 25 per cent uplift from category 2B costs on the basis that the applicants’ claim lacked merit, and the applicants failed to adhere to a settlement agreement in which they agreed not to continue with the substantive proceeding. The uplift is opposed by the applicants.

[4] It was agreed that the issue of costs should be determined on the papers. The memoranda subsequently filed have been referred to me for determination.

Legal framework

[5] Part 14 of the High Court Rules 2016 governs the award of costs. Rule 14.2 sets out the principles that apply, with the primary principle being that the party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds.2

[6] Rule 14.6(3) sets out the circumstances in which the Court may order a party to pay increased costs. Those circumstances include where the party opposing costs has contributed unnecessarily to the time or expense of the proceeding or step in it by:

(i)failing to comply with these rules or with a direction of the court; or

(ii)taking or pursuing an unnecessary step or an argument that lacks merit; or

(iii)failing, without reasonable justification, to admit facts, evidence, documents, or accept a legal argument; or

1 Hillier and Ors v Whitewood and Ors [2018] NZHC 2623.
2 High Court Rules 2016, r 14(2)(1)(a).

(iv)failing, without reasonable justification, to comply with an order for discovery, a notice for further particulars, a notice for interrogatories, or other similar requirement under these rules; or

…

[7] A claim for increased costs is to be calculated on…

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 Hillier v Whitewood

Details

AGLC: Hillier v Whitewood [2019] NZHC 232
Case: [2019] NZHC 232
Decision Date: 22 February 2019

CaseChat Overview and Summary

In the matter of Hillier and Others v Whitewood and Others, the High Court of New Zealand was tasked with determining whether the applicants were entitled to an award of increased costs following the dismissal of their substantive claim. The applicants, Tracy Hillier, Muriwai Jones, Dave Peters, Arapeta Mio, and Te Aururangi Davis, had sought to challenge the Trust Deed for the Ngaitai Iwi Authority, arguing that it did not provide for beneficiaries to remove and appoint trustees outside the three-yearly election process. The respondents, Vincent Whitewood, Raelyn Rika, Garry Watson, and Stella Taku, maintained that the Trust Deed was correctly interpreted and that the applicants' claim lacked merit. The court had previously determined that the Trust Deed did not permit the removal of trustees outside the prescribed election process, and the parties subsequently agreed that this determination disposed of the applicants’ substantive claim. The respondents sought an award of increased costs, arguing that the applicants' claim was meritless and that the applicants breached a settlement agreement by continuing with the substantive proceedings.

The court considered the legal principles governing the award of costs, particularly whether the applicants' claim lacked merit and whether they breached a settlement agreement. The court held that the applicants' claim, while ultimately unsuccessful, was not totally devoid of merit as the Trust Deed was not entirely clear in its provisions. Additionally, the court could not conclusively determine whether a settlement agreement was reached that precluded the applicants from continuing with the proceedings. Given these uncertainties, the court found no basis to award increased costs to the respondents.

The court awarded costs to the respondents on a category 2B basis and reasonable disbursements, but declined the application for increased costs. The decision underscores the importance of clarity in settlement agreements and the need for certainty in determining whether a party has acted unreasonably in the context of a costs determination.

Orders