Lendrum v Northern Presbytery - [2020] NZHC 325

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-001161

[2020] NZHC 325

BETWEEN REVEREND DOUGLAS ALEXANDER LENDRUM
Plaintiff

AND

NORTHERN PRESBYTERY

Defendant

On the papers

Judgment:

28 February 2020

COSTS JUDGMENT OF HINTON J

This judgment was delivered by me on 28 February 2020 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Counsel/Solicitors:
Integritas, Auckland
Katie Hogan, Barrister, Auckland

LENDRUM v NORTHERN PRESBYTERY [2020] NZHC 325 [28 February 2020]

Introduction

[1] On the second day of the hearing of a number of interlocutory applications in respect of this matter on 24-25 September 2019, the parties reached a settlement and agreed to discontinue the proceeding. Both parties seek costs.

[2] I note that the parties’ memoranda refer to the then pendency of an application for civil legal aid by Reverend Lendrum. I have not been advised of the outcome of that application, so I assume it has been resolved in the negative. I proceed on the basis that the Reverend is not an “aided person” for the purposes of the Legal Services Act 2011.

Background

[3] Reverend Lendrum has been a minister within the Northern Presbytery of the Presbyterian Church of Aotearoa New Zealand for 18 years.

[4] His claim was that the Northern Presbytery had breached contract in establishing a Commission to enquire into complaints received about him pursuant to the Church’s Book of Order.

[5] The Reverend claimed the Presbytery was in breach of the rules of the constitution of the Church which was also pleaded as an abusive and improper use of its power to establish a Commission, alleged to be motivated by the desire of some within the Church to quash the Reverend’s apparently divergent views on the best interests of the congregation he leads.

[6] The Presbytery had fixed a hearing date for the Commission of 31 August 2019 and was, as of 24 June 2019, proposing to issue a Notice of Commission to members of the church’s congregation. The Notice was to set out the matters to be investigated before the Commission and to request information be provided. The Notice stated the Commission would consider:

(a)inadequacy of any kind on the part of the Minister, Rev Lendrum; or

(b)an unacceptably low standard of performance of the responsibilities of Rev Lendrum; and/or

(c)an incompatibility between Rev Lendrum and the congregation, or a sufficiently large proportion of it, such as to seriously affect the harmony of the congregation, or the congregation’s ability to perform its functions as set out in Chapter 5 of the Book of Order.

[7] The Notice makes it clear that the plaintiff’s position within the Church could potentially be terminated as an ultimate result of the Commission process.

[8] On 24 June 2019, Davison J granted an ‘interim interim’ injunction preserving Reverend Lendrum’s position pending a two-day hearing of the application for interim injunctive relief. The Judge considered that the Reverend would be prejudiced if 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.

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Details

Case: [2020] NZHC 325
Decision Date: 28 February 2020

CaseChat Overview and Summary

Reverend Douglas Alexander Lendrum initiated proceedings against the Northern Presbytery, alleging breach of contract and misuse of power in establishing a Commission to investigate complaints about him. The matter proceeded to a hearing on interlocutory applications, where the parties reached a settlement. Both parties subsequently sought costs associated with the proceedings. The High Court of New Zealand was tasked with determining the costs incurred by both parties and whether either was entitled to an award under the High Court Rules 2016.

The primary legal issue was whether the Northern Presbytery was entitled to costs under rule 15.23 of the High Court Rules 2016, which provides that a plaintiff who discontinues a proceeding must pay costs to the defendant unless the court otherwise orders. Reverend Lendrum argued that rule 15.23 did not apply as the discontinuance was part of a settlement agreement rather than a unilateral action by the plaintiff. The Reverend also contended that the Presbytery's conduct in not advising him of his rights under the Church’s Book of Order was a reason to grant him costs. Conversely, the Presbytery argued that it was entitled to costs as the presumptive winner of the proceeding.

The Court found that rule 15.23 did not apply since the discontinuance was part of a settlement agreement. The Court also held that it was not in a position to determine the merits of the substantive proceeding, which would have been necessary to decide whether the Reverend or the Presbytery would have been the successful party. The Court awarded the Presbytery costs for its successful application to be struck out as a defendant, amounting to $5,235.21.

The Court dismissed Reverend Lendrum's application for costs and ordered him to pay the Northern Presbytery costs and disbursements in the amount of $5,235.21. The Court clarified that this amount was exclusive of GST, and inclusive of GST, the total would be $5,955.27.

Orders