Hitchcock v Murphy - [2022] NZHC 3542

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-000630

[2022] NZHC 3542

IN THE MATTER OF Section 146 of the Land Transfer Act 2017

IN THE MATTER OF

Lot 1 on Deposited Plan 512179, Title 788085 (North Auckland Registry)

BETWEEN

STEPHEN LESTER HITCHCOCK

Applicant

AND

SUSAN KERRIE MURPHY

Respondent

Hearing: (On the papers)

Counsel:

Gregory Thwaite for the Applicant Katie Hogan for the Respondent

Judgment:

19 December 2022

JUDGMENT OF MOORE J

[Costs]

This judgment was delivered by me on 19 December 2022 at 4:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

HITCHCOCK v MURPHY [2022] NZHC 3542 [19 December 2022]

Introduction

[1] The applicant, Mr Hitchcock, filed but subsequently discontinued an application for leave to lodge a second caveat against property.

[2] The respondent, Ms Murphy, seeks costs on a 2B scale basis. Ms Murphy’s position is that she was the successful party; that there was no jurisdiction to lodge a second caveat; and that Mr Hitchcock’s application was duplicative of issues in the substantive proceeding.

[3] Mr Hitchcock opposes the application for costs. His position is that he did not fail with respect to the application for leave; rather, the respondent's unilateral act of selling the property precipitated its discontinuation. He says the Court should exercise its discretion to award costs in his favour, alternatively that costs should lie where they fall.

Background

[4] Mr Hitchcock and Ms Murphy are siblings. The underlying dispute, which has been afoot since 2019, relates to a 10-acre parcel of land owned by Ms Murphy in Coatesville (“the Property”).

[5] Mr Hitchcock has resided at the Property at all material times since 2003. Over this period he has advanced Ms Murphy various sums to put towards the development of the Property, aspects of which he undertook himself, though the basis on which he did so is contested.

[6] In 2016, Ms Murphy decided to subdivide the Property into two 5-acre blocks which she would then sell. Mr Hitchcock proposed that the rear 5-acre block be further subdivided into two 2.5-acre blocks, one of which he would acquire.

[7] Mr Hitchcock maintained that Ms Murphy agreed to this proposal. Ms Murphy’s evidence was to the effect that she was prepared to explore the possibility, but would only proceed if it would produce the same profit as selling the full 5-acre block.

[8] In any event, Mr Hitchcock undertook physical works to enable the subdivision he proposed. In late 2018, Ms Murphy listed the rear 2.5-acre block for sale but there was a lack of interest. She therefore advised Mr Hitchcock that she would revert to the original proposal, being subdivision of the Property into two 5-acre blocks.

[9] On 2 May 2019, Mr Hitchcock lodged a caveat against the Property. On 18 March 2020, Land Information New Zealand issued a notice to lapse the caveat. Mr Hitchcock then applied on 25 March 2020 for an order…

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 Hitchcock v Murphy

Details

AGLC: Hitchcock v Murphy [2022] NZHC 3542
Case: [2022] NZHC 3542
Decision Date: 19 December 2022

CaseChat Overview and Summary

The case of Hitchcock v Murphy involves a dispute between siblings over a parcel of land owned by Ms Murphy in Coatesville. The applicant, Mr Hitchcock, filed an application for leave to lodge a second caveat against the property after his initial caveat lapsed. The respondent, Ms Murphy, seeks costs on a 2B scale basis, arguing that Mr Hitchcock's application was duplicative of issues in the substantive proceeding. Mr Hitchcock opposes the application for costs, claiming that the respondent's unilateral act of selling the property precipitated the discontinuation of his application. The legal issues in this case revolve around the presumption under rule 15.23 of the High Court Rules 2016, which provides that a plaintiff who discontinues a proceeding must pay costs to the defendant unless the court orders otherwise. The court must be satisfied that the discontinuance was due to a change of circumstances that obviated the need for the proceeding and that the plaintiff would have succeeded but for the change in circumstances.

The court found that Ms Murphy's unilateral act in selling the property amounted to a change of circumstances that obviated the need for the proceeding. However, in order for the presumption in rule 15.23 to be displaced, the court must also be satisfied that Mr Hitchcock would have succeeded in the proceeding but for the sale of the property. The court found that Mr Hitchcock's arguments do not establish an interest in the property capable of supporting a caveat, and that it would not have granted him leave to lodge a second caveat. However, the court considered a 20 per cent reduction in costs payable by Mr Hitchcock to be appropriate given Ms Murphy's conduct in selling the property in advance of the hearing date. The court ordered that Mr Hitchcock is to pay Ms Murphy costs on a 2B scale basis of $5,736.00, less 20 per cent.

Orders