Jef v Gjo - [2012] NZHC 3607

NOTE: ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS
11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION PLEASE SEE COURT/ABOUT/MEDIA/GUIDELINES#FC9.

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2011-419-001529 [2012] NZHC 3607

IN THE MATTER OF an appeal pursuant to the District Courts
Act 1947, Section 72

BETWEEN J E F Appellant

AND G J O
First Respondent

ANDG J O AND R M W AS TRUSTEES OF THE S FAMILY TRUST HAMILTON Second Respondent

Hearing: 21 December 2012 (On the Papers)

Counsel: D Hayes for the Appellant
R D Clark for the Respondent

Judgment: 21 December 2012

JUDGMENT OF DUFFY J [Re Costs]

This judgment was delivered by Justice Duffy on 21 December 2012 at 1.00 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

JEF v GJO HC HAM CIV-2011-419-001529 [21 December 2012]

Background

[1] The appellant commenced an appeal from a Family Court decision finding that a property had been validly transferred to a trust before the commencement of the appellant’s de facto relationship with the deceased and that, therefore, she had no interest in it. In JEF v GJO [2012] NZHC 1021, I dismissed the appeal.

[2] The respondents now seek increased costs.

Respondents’ submissions on costs

[3] The respondents submit that the scale provides for costs to be awarded in the sum of $9,751, plus disbursements in the sum of $641.17.

[4] The respondents state that the actual costs incurred on this appeal are:

Item Particulars Amount

1 Part of invoice dated 11 April 2012

2 Invoice dated 18 April 2012

TOTAL

$ 8.050.00

$ 4,312.50

$12,362.50

[5] The respondents submit that this was unmeritorious litigation that involved a trust argument that should have been the subject of an application to the High Court, and that the appellant has acted unnecessarily in commencing these proceedings and to that extent acted unreasonably.

[6] The respondents point to various settlement proposals that were rejected by the appellant. Also, scale costs do not cover the time and effort spent on the appeal and the respondents have been entirely successful. The appellant also made claims that had already been soundly rejected by a well-reasoned decision in the Family Court.

[7] Finally, the respondents point to the fact that the appellant inappropriately raised an argument about a sham trust that was not pursued, even when proceedings had been granted in the Family Court proceedings for the appellant to apply to the High Court.

[8] The respondents, therefore, seek increased costs to the sum of $12,362.50, plus costs of the application amounting to $1,811.25.

Appellants’ submissions on costs

[9] The appellant submits that costs on a 2A basis would be appropriate. The appellant submits that $3,384 is more realistic than the $9,751, plus disbursements that the respondents have described as scale costs.

[10] The appellant also refers to the “ill-considered application” by the respondents to have the appeal dismissed, which should at least leave costs where they fall. The appellant…

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 Jef v Gjo

Details

AGLC: Jef v Gjo [2012] NZHC 3607
Case: [2012] NZHC 3607
Decision Date: 21 December 2012

CaseChat Overview and Summary

The matter before the court was an appeal from the Family Court's decision that the property had been validly transferred to a trust prior to the commencement of the de facto relationship between the appellant and the deceased. The Family Court found that the appellant had no interest in the property. The respondents sought increased costs, arguing that the appeal was unmeritorious and that the appellant had acted unreasonably by not pursuing a sham trust argument in the Family Court before appealing. The court considered the submissions of both parties on the appropriate level of costs and the merits of the appeal.

The court held that the appeal was unmeritorious, and that the appellant had acted unreasonably by not pursuing the sham trust argument in the Family Court. The court found that the appropriate level of costs was slightly above scale 2B, given the nature of the appeal. The court awarded the respondents costs of $10,500, plus reasonable disbursements to be determined by the Registrar. The court found that the respondents were entitled to costs on a 2A basis for the application for increased costs, as there was nothing out of the ordinary that warranted a higher award of costs.

The court awarded the respondents costs of $10,500, plus reasonable disbursements to be determined by the Registrar. The court found that the respondents were entitled to costs on a 2A basis for the application for increased costs. The court's decision was based on the unmeritorious nature of the appeal and the appellant's failure to act reasonably by not pursuing the sham trust argument in the Family Court. The court found that the appropriate level of costs was slightly above scale 2B, given the nature of the appeal.

Orders