Laboyrie v Mills - [2020] NZHC 2557

IN THE HIGH COURT OF NEW ZEALAND HAMILTON HREGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2018-419-000328

[2020] NZHC 2557

BETWEEN
PAULINE CLARE LABOYRIE, WAYNE FRANCIS MILLS,

MARY DIANNE GEMMELL as Trustees of the GALWAY TRUST

First Plaintiffs

PAULINE CLARE LABOYRIE
Second Plaintiff

WAYNE FRANCIS MILLS
Third Plaintiff

MARY DIANNE GEMMELL
Fourth Plaintiff

AND

TERENCE PATRICK MILLS as Executor of the Estate of STEPHEN JOHN MILLS Defendant

Hearing: [On the Papers]

Counsel:

S W B Foote QC and K B Arthur for the Plaintiffs M D Branch and K F Shaw for the Defendant

Judgment:

30 September 2020

JUDGMENT OF EDWARDS J

[re Costs]

This judgment was delivered by me on 30 September 2020 at 4.30 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar

Counsel: S W B Foote Qc, Auckland
K B Arthur, Auckland

Solicitors: Harkness Henry, Hamilton

LABOYRIE v MILLS [2020] NZHC 2557 [30 September 2020]

[1]In my judgment of 6 April 2020:1

(a)The first plaintiffs’ claim for an institutional constructive trust was allowed and all remaining causes of action were dismissed.

(b)The defendant’s counterclaim for conversion was allowed, but an award of damages was not made.

(c)The defendant’s counterclaim for debt in the sum of $30,300 was also allowed. Judgment on this counterclaim was entered by consent.

[2] The plaintiffs seek scale costs (schedule 2B) plus an uplift of 50 per cent for any or all of three Calderbank offers. Disbursements of $14,149 are sought in addition.

[3] The defendant opposes costs on a variety of grounds. Each of those grounds of opposition, and the issues arising, are addressed below.

Who was successful?

[4] In my substantive judgment, I concluded that the plaintiffs were the successful parties and were entitled to an award of costs. The defendant challenges that statement on the basis that the first plaintiffs lost on the first cause of action (express trust), withdrew the proprietary estoppel claim at trial, and the second to fourth plaintiffs lost on the alternative causes of action. The defendant was also partially successful in relation to his claim for debt and in the conversion counterclaim.

[5] None of these submissions alters my view that the first plaintiffs were the successful parties. This was a claim by three siblings to a beneficial interest in a property. They established that interest. Stripped to the essence of the case, it is clear that the three plaintiff siblings were successful.

1 Laboyrie v Mills [2020] NZHC 700.

[6] The three siblings brought their claim in their capacities as trustees, or alternatively in their personal capacities. That is not the same as altogether different plaintiffs advancing different claims, and I do not accept the defendant’s argument on that ground.

[7] Furthermore, the causes of action were posited in the alternative. Those alternatives were premised on different constructions of the same set of facts. Success on one of those causes of action was enough to establish the claim, and meant that the other causes of action…

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 Laboyrie v Mills

Details

AGLC: Laboyrie v Mills [2020] NZHC 2557
Case: [2020] NZHC 2557
Decision Date: 30 September 2020

CaseChat Overview and Summary

The case of Laboyrie v Mills involved a dispute between siblings over the beneficial interest in a property. The plaintiffs, Pauline Clare Laboyrie, Wayne Francis Mills, and Mary Dianne Gemmell, as trustees of the Galway Trust, along with Pauline as an individual, sought a declaration of an institutional constructive trust over a property. The defendant, Terence Patrick Mills, as executor of the estate of Stephen John Mills, counterclaimed for conversion and a debt of $30,300. The High Court of New Zealand, Hamilton Registry, delivered a substantive judgment on April 6, 2020, allowing the plaintiffs' claim for an institutional constructive trust, dismissing all other causes of action, and allowing the defendant's counterclaim for conversion and debt by consent. The plaintiffs now sought scale costs plus an uplift for Calderbank offers, and the defendant opposed the costs on several grounds.

The court first addressed whether the plaintiffs were the successful parties, despite not prevailing on all causes of action. The court concluded that the plaintiffs were successful as they established a beneficial interest in the property, and the other issues did not affect the overall outcome. The court allowed second counsel and the claim for three amended pleadings, adjusting the defendant's costs for responding to these pleadings. Regarding the Calderbank offers, the court found an uplift of 25% was appropriate for steps taken after the third offer expired. The court also determined that the defendant should be personally liable for any costs not met by the estate due to his personal interests in the litigation. Finally, the court declined to address the plaintiffs' claim for set-off of the debt owed to the estate against the costs award, noting that the parties should deal with the payments in a sensible manner.

The court ordered that the estate would bear the costs of the litigation in the first instance, with the defendant personally liable for any residual balance. The plaintiffs were awarded costs on a schedule 2B basis, with an uplift of 25% for steps taken post 6 September 2019, less a deduction of $10,000 for the defendant’s costs in responding to amended pleadings.

Orders