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Hitchcock v Murphy

Hitchcock v Murphy

Case [2022] NZHC 305 28 February 2022

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-2227

[2022] NZHC 305

BETWEEN
STEPHEN LESTER HITCHCOCK

Plaintiff

AND

SUSAN KERRIE MURPHY

Defendant

Hearing: 10 February 2022

Appearances:

Gregory Thwaite for the Plaintiff Katie Hogan for the Defendant

Judgment:

28 February 2022

JUDGMENT OF ASSOCIATE JUDGE TAYLOR

This judgment was delivered by me on 28 February 2022 at 3:30pm
pursuant to Rule 11.5 of the High Court Rules

…………………………. Registrar/Deputy Registrar

Solicitors:
Gregory Thwaite, Auckland, for the Plaintiff
Insight Legal Limited (Ben Lupton), Warkworth, for the Defendant

Copy for:
Katie Hogan, City Chambers, Auckland, for the Defendant

HITCHCOCK v MURPHY [2022] NZHC 305 [28 February 2022]

Introduction

[1] The defendant in this proceeding, Ms Susan Kerrie Murphy, applies for security for costs. The plaintiff in this proceeding is Ms Murphy’s brother, Mr Stephen Lester Hitchcock.

Background

[2] Ms Murphy owns a property in Coatesville. Mr Hitchcock resided at the property between 2003 and 2020 (apart from a period of incarceration between 2007 and 2010). From 2010, he lived in a Portacom building at the rear of the property.

[3] In 2019, Ms Murphy took steps to subdivide and sell the rear part of the property. In response, Mr Hitchcock lodged a caveat over the property. He later applied to the High Court to sustain the caveat.

[4] On 28 August 2020, Associate Judge Gardiner ordered that the caveat lapse. She awarded $12,229.50 in costs to Ms Murphy. Mr Hitchcock appealed that decision and filed an interlocutory application for interim relief pending determination of the appeal.

[5] The interlocutory application failed because the caveat had already lapsed, and Mr Hitchcock subsequently abandoned his appeal.

[6] Mr Hitchcock filed the present proceeding on 13 November 2020. He asserts a number of claims against Ms Murphy, including for subdivision and sale to Mr Hitchcock of a 2.5 acre parcel of the Coatesville property and declaration of a constructive trust in respect of that parcel. Alternatively, he seeks a judgment for debts he claims he are owed by Ms Murphy. His essential contentions are that he assisted Ms Murphy with finance, and development and maintenance of the land over a number of years. Mr Hitchcock says Ms Murphy has either failed to repay sums he loaned to her or failed to recognise his equitable interest in the property.

[7] In December 2021, Mr Hitchcock applied to the Tenancy Tribunal to cancel an eviction notice Ms Murphy served on him. He abandoned that application on the day of its hearing, with $2,000 in costs awarded in Ms Murphy’s favour.

[8] Despite Ms Murphy’s demands, Mr Hitchcock has paid neither of the costs awards against him.

[9] Mr Hitchcock is said to have operated a cannabis enterprise in an underground bunker on the Coatesville property. In 2021, assets of Mr Hitchcock were forfeited after a Criminal Proceeds (Recovery) Act 2009 proceeding found he had received
$402,357.80 cash deposits with negligible declared income.

Application for security for…

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 305
Case: [2022] NZHC 305
Decision Date: 28 February 2022

CaseChat Overview and Summary

In this proceeding, Susan Kerrie Murphy applies for security for costs against Stephen Lester Hitchcock. The application arises out of a long-running dispute between the parties, with Mr Hitchcock having filed a number of unsuccessful proceedings against Ms Murphy. The application is dismissed. The Court is satisfied there is reason to believe the plaintiff will be unable to pay the costs of the defendant if the plaintiff is unsuccessful in his proceeding. However, the Court is not satisfied that it is just in all the circumstances to exercise its discretion under Rule 5.45 to order security for costs. The plaintiff's claim as now formulated in the amended statement of claim dated 13 November 2020 is not without merit. In particular, the plaintiff's claim to repay debts owed by Ms Murphy is not without merit. The Court considers that an order for security for costs will impede the plaintiff's ability to pursue his claims against the defendant. The plaintiff as the successful party is entitled to costs on a Schedule 2B basis.

Orders