Judd v Hodgkinson - [2015] NZHC 318

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CIV-2013-441-121 [2015] NZHC 318

BETWEEN
MICHELLE KERRIAN JUDD

Plaintiff

AND

HAWKE'S BAY TRUSTEE COMPANY LIMITED

RICHARD WILLIAM HODGKINSON as TRUSTEES OF THE RICHARD HODGKINSON FAMILY TRUST Defendants

On thepapers:

Counsel:

J L Bates for Plaintiff
M E J Macfarlane for Defendants

Judgment:

2 March 2015

JUDGMENT OF WILLIAMS (COSTS)

[1] In a reserved judgment issued on 17 December 2014, I found in favour of Ms Judd’s

claim against her husband’s trust to the extent of $65,000.1 Ms Judd’s initial claim was to

40 per cent of the value of the trust property at Lane Road, valued at over $800,000. The judgment sum fell well short of that. I found that Ms Judd will be entitled to costs albeit reduced to reflect her limited success.

[2] In the memoranda filed by counsel as to costs, one issue was contested. That was whether costs should be awarded to the plaintiff on the High Court scale (totalling $38,009) or the District Court scale (totalling $28,365), plus disbursements of $9,329.20 (High Court).2 A sub-issue of that contest was the extent to which the Court of Appeal decision in Murrell v Hamilton3 bore on my decision in this case – did the nature and complexity of this

1      Judd v Hawke’s Bay Trustee Company Ltd [2014] NZHC 3298.
2      Counsel for Ms Judd did not provide a figure for disbursements on a District Court scale.
3      Murrell v Hamilton [2014] NZCA 377.

JUDD v HAWKE'S BAY TRUSTEE COMPANY LIMITED & ORS [2015] NZHC 318 [2 March 2015]

proceeding justify its filing in the High Court as opposed to the District Court, given the amount of the claim and the ultimate judgment sum?

[3] There was also mention by Mr Macfarlane of an offer to settle for $70,000. He rightly accepted in a subsequent memorandum that the offer was too late in the piece to be relevant to the ultimate determination of costs. I have accordingly not considered that offer in reaching my conclusion as to costs.

[4] Where the plaintiff could have proceeded in the District Court, costs will normally be awarded at the District Court level, unless the Court considers otherwise.4 The Court will exercise its general discretion as to costs for cases that are properly tried in the High Court if so satisfied after considering: (i) the amount of the claim and judgment; (ii) the nature and complexity of the proceeding; (iii) the kind of factual and legal issues raised by the
pleadings; (iv) whether the case raises matters of public important; and (v) the parties’

approach to the litigation.5

[5] Counsel for the plaintiff argues High Court costs are justified because, when she filed her claim, the Murrell litigation had not been determined in the High Court.6 As such, the plaintiff’s claim was “without close precedent, but was always a principled one”. Counsel for the defendants on the other hand says that, on all but one issue, this was a straightforward…

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 Judd v Hodgkinson

Details

AGLC: Judd v Hodgkinson [2015] NZHC 318
Case: [2015] NZHC 318
Decision Date: 2 March 2015

CaseChat Overview and Summary

In Judd v Hodgkinson, Michelle Kerrian Judd, the plaintiff, brought a claim against Hawke's Bay Trustee Company Limited and Richard William Hodgkinson as trustees of the Richard Hodgkinson Family Trust, the defendants, seeking a 40% share of the value of trust property located at Lane Road. The case was heard in the High Court of New Zealand, Napier Registry. The plaintiff sought $65,000, which was a fraction of the $800,000 value of the property. The court found in favour of the plaintiff, awarding her $65,000 and a reduced amount of costs, given her limited success.

The primary legal issue the court had to decide was whether the plaintiff should be awarded costs on the High Court scale or the District Court scale. The plaintiff's counsel argued that High Court costs were justified due to the nature and complexity of the proceedings, which involved an absence of close precedent. In contrast, the defendant's counsel contended that the case was straightforward and could have been tried in the District Court. Another issue was the relevance of the Court of Appeal decision in Murrell v Hamilton to the determination of costs.

The court found that the proceedings, although complex, did not require the High Court scale of costs. The court exercised its discretion to award costs on the District Court scale, considering factors such as the amount of the claim and judgment, the nature and complexity of the proceeding, and the parties' approach to the litigation. The court also considered the Court of Appeal decision in Murrell v Hamilton, which influenced the plaintiff's claim but did not necessarily justify High Court costs. The court ultimately awarded District Court based costs and disbursements to the plaintiff.

The final orders of the court were that the plaintiff would receive $65,000 from the defendants, along with costs and disbursements on the District Court scale. The defendants have appealed the judgment on the issue of the award of costs.

Orders