Janes v Benney - [2019] NZHC 2719

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-580

[2019] NZHC 2719

BETWEEN
KIM JANES

First Plaintiff

JADE PAUL VATSELIAS
Second Plaintiff

AND

MARGARET BENNEY
First Defendant

DANIEL JOHN REED
Second Defendant

UNLIMITED POTENTIAL LIMITED

Third Defendant

SANDI ANDERSON

Fourth Defendant

Hearing: On the papers

Appearances:

K Sheehan for the Plaintiffs

C R Andrews for the Second and Third Defendants No appearance for First and Fourth Defendants

Judgment:

24 October 2019

COSTS JUDGMENT (No.2) OF ASSOCIATE JUDGE R M BELL

This judgment was delivered by me on 24 October 2019 at 11:00am
pursuant to Rule 11.5 of the High Court Rules.

…………………………………
Deputy Registrar

Solicitors:
Kate Sheehan, Auckland, for the Plaintiffs
McVeagh Fleming (C R Andrews), Auckland, for Second and Third Defendants

JANES v BENNEY [2019] NZHC 2719 [24 October 2019]

[1] Before this case is sent to the District Court, costs in this court need to be resolved. There are two aspects:

(a)For those parts of the case that remain alive, costs need to be set to assist the District Court in awarding costs after the case is heard there.

(b)For those parts of the case that have now been resolved, costs orders are required before the case is transferred to the District Court.

[2] The plaintiffs sued the vendor, Ms Benney (the first defendant), the real estate salesman, Mr Reed (the second defendant), the real estate agency, Unlimited Potential Ltd (the third defendant) and their lawyer, Ms Anderson (the fourth defendant). The plaintiffs applied for summary judgment against them all.

[3] Costs in the claim against Ms Benney have been resolved. Ms Benney did not oppose the summary judgment application. I gave Ms Janes judgment against Ms Benney for $267,955.25 plus interest, but that was a partial award only.1 I fixed costs payable by Ms Benney in my minute of 7 October 2019. Ms Janes may now enforce her judgment against Ms Benney. She does not wish to continue her claim against Ms Benney for further damages.

[4] The plaintiffs withdrew their application for summary judgment against Ms Anderson, the fourth defendant. After my decision of 5 August 2019, the plaintiffs and Ms Anderson settled. The plaintiffs have discontinued against Ms Anderson. No costs issues arise there.

[5] Mr Reed and Unlimited Potential opposed the plaintiffs’ applications for summary judgment and cross-applied for summary judgment against the plaintiffs. Unlimited Potential also counterclaimed for unpaid commission and sought summary judgment on the counterclaim.

1 Janes v Benney [2019] NZHC 1911.

[6] I dismissed the plaintiffs’ application for summary judgment against Mr Reed and Unlimited Potential. I granted Mr Reed’s and Unlimited Potential’s application for summary judgment against Mr Vatsellias. I struck out Ms Janes’ cause of action for breach of contract against Mr Reed, but dismissed his application for summary judgment against her. I dismissed Unlimited Potential’s applications for summary judgment against Ms Janes.2

[7] On settling with Ms Anderson, Ms Janes discontinued against Mr Reed and Unlimited…

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 Janes v Benney

Details

AGLC: Janes v Benney [2019] NZHC 2719
Case: [2019] NZHC 2719
Decision Date: 24 October 2019

CaseChat Overview and Summary

The case of Janes v Benney was heard by Associate Judge R M Bell in the High Court of New Zealand Auckland Registry. The plaintiffs, Kim Janes and Jade Paul Vatselias, sued the vendor Margaret Benney, the real estate salesman Daniel John Reed, the real estate agency Unlimited Potential Limited, and their lawyer Sandi Anderson. The plaintiffs applied for summary judgment against all defendants. The primary legal issues involved determining the appropriate costs to be borne by the parties for the steps taken in the High Court and the costs to be borne by the plaintiffs for discontinuing their claims against the second and third defendants.

The court addressed the costs for the steps taken in the High Court by setting out the costs for each party. The court noted that costs for the District Court would be decided by a District Court judge after a hearing. The court fixed the costs for Unlimited Potential if it wins and for Kim Janes if she successfully defends the claim for commission. Additionally, the court assessed that Kim Janes should pay Unlimited Potential $4,460 for the discontinuance of her claims against the second and third defendants. The court found that the plaintiffs' applications for summary judgment against Mr Reed and Unlimited Potential were unnecessary, and that Kim Janes had caused more unnecessary costs to Unlimited Potential than the other way around.

The final orders of the court included the transfer of the case to the District Court at Auckland, the setting of costs for steps taken in the High Court, and the order for Kim Janes to pay Unlimited Potential $4,460 on the discontinuance of her claims against the second and third defendants.

Orders