Leggett v Coley - [2022] NZHC 3297

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2022-488-000031

[2022] NZHC 3297

BETWEEN
KERRIE ROSE LEGGETT

Applicant

AND

CLARKE SALVATORE COLEY (as named

administrator of the Estate of Wayne Harris Coley)
First Respondent

CLARKE SALVATORE COLEY

Second Respondent

Hearing: On the papers

Appearances:

J G A Day for the Applicant R Mark for the Respondent

Judgment:

8 December 2022

COSTS JUDGMENT OF ASSOCIATE JUDGE GARDINER

This judgment was delivered by me on 8 December 2022 at 12.00 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date.......................................

Solicitors:

Law North Ltd, Kerikeri R C Mark, Kerikeri

LEGGETT v COLEY [2022] NZHC 3297 [8 December 2022]

Introduction

[1] On 16 July 2021, the applicant, Ms Leggett, registered a caveat over a property in Kerikeri formerly owned by her stepfather. Mr Coley, the respondent, is the registered proprietor. Ms Leggett asserts an interest in the property on the basis that her stepfather had made assurances to her that she would be entitled to a share of it after his death. She intends to bring proceedings alleging breach of contract, a testamentary promise under the Law Reform (Testamentary Promises Act) 1949, and estoppel.

[2] The parties attempted to reach agreement on the removal of the caveat in exchange for certain undertakings. Those attempts were unsuccessful and Mr Coley applied to lapse the caveat. Ms Leggett subsequently filed an application without notice to sustain the caveat on 7 June 2022. Venning J made an interim order sustaining the caveat on 7 June 2022 and set the application down for a hearing on 15 August 2022.

[3] Counsel filed a joint memorandum dated 11 July 2022 recording that the parties had agreed to remove the caveat provided both gave the listed undertakings. Ms Leggett undertook to remove the caveat and issue her substantive proceedings within 30 days. Among other things, Mr Coley undertook to list the property for sale as soon as practicably possible and to hold 50 per cent of the net proceeds of sale in his solicitor’s trust account pending the outcome of Ms Leggett’s proceedings. Moore J granted those orders by consent in a minute dated 12 July 2022.

[4] Mr Coley seeks costs on the basis that he has been the successful party in getting Ms Leggett to agree to a settlement. He states that before applying to lapse the caveat, he made several settlement offers to Ms Coley, which she rejected. He suggests that she acted unreasonably in doing so though he does not seek increased costs.

[5] Ms Leggett however submits that costs should lie where they fall because the matter was resolved by a settlement in which both parties made concessions. She says that she should not have to pay costs as she was successful in achieving a settlement which protects her interests, such settlement being more than what Mr Coley had

offered prior to the proceeding. She says that she acted reasonably in filing the…

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 Leggett v Coley

Details

AGLC: Leggett v Coley [2022] NZHC 3297
Case: [2022] NZHC 3297
Decision Date: 8 December 2022

CaseChat Overview and Summary

In Leggett v Coley, the applicant, Ms Leggett, sought to sustain a caveat over a property in Kerikeri that was formerly owned by her stepfather. The registered proprietor, Mr Coley, applied to lapse the caveat. Ms Leggett's application to sustain the caveat was initially successful, but the parties later reached a settlement agreement whereby the caveat was removed in exchange for specific undertakings from both parties. Mr Coley sought costs on the basis that he was the successful party in getting Ms Leggett to agree to the settlement, while Ms Leggett argued that costs should lie where they fell as the matter was resolved by a settlement in which both parties made concessions.

The court examined the legal principles governing costs in interlocutory applications and the circumstances of the settlement reached by the parties. The court noted that costs generally follow the event, but this principle does not apply where the parties have settled. The court also considered that it could not determine a winner or loser in this case, as the settlement represented a compromise and there had been no determination of the merits of the application. The court found no compelling reason to award costs to either party, as there was no evidence that either party acted unreasonably in filing their respective applications or in negotiating the settlement.

The court concluded that an award of costs would be inappropriate in these circumstances, where the issues were resolved by agreement between the parties. Accordingly, the court ordered that costs were to lie where they fell. This outcome reflects the court's recognition that, in cases where the parties have reached a settlement, it is generally inappropriate to award costs to one party over the other unless there is a clear basis for doing so.

Orders