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Marr v Kennington

Marr v Kennington

Case [2023] NZHC 1245 25 May 2023

Admissibility of Evidence

Civil Litigation & Procedure

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IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2022-441-15

[2023] NZHC 1245

BETWEEN PATRICIA JEAN MARR and KEVIN DOUGLAS ROBERTS
Plaintiffs

AND

ANGELA JANE KENNINGTON

Defendant

Hearing: 3 May 2023

Appearances:

S J Webster for Plaintiffs M A Black for Defendant

Judgment:

25 May 2023

JUDGMENT OF ASSOCIATE JUDGE SKELTON

[1] This matter concerns a costs dispute arising out of a now redundant application for an order for possession of a property in Napier under s 251 of the Property Law Act 2007.

[2] In early 2019, Wayne and Elizabeth Kennington sold a property they owned at 43 McGrath Street in Napier to one of their daughters, Patricia Marr, and her partner, Kevin Roberts, the plaintiffs.

[3] Wayne and Elizabeth’s other daughter, Angela Kennington, the defendant, was living in the property at the time of the sale and continued to do so until February 2023.

[4] Subsequently, the plaintiffs decided they wanted to sell the property and to be able to offer it with vacant possession. They served the defendant with a notice to quit which expired on 14 February 2022. The defendant refused to vacate the property,

MARR v KENNINGTON [2023] NZHC 1245 [25 May 2023]

asserting a proprietary interest in the property. The plaintiffs then applied for an order for possession.

[5] The plaintiffs’ application for summary judgment was declined by Associate Judge Johnston on 5 October 2022 on the basis that there were factual controversies such that the Court would benefit from a full hearing.1

[6] The defendant sought costs in relation to the plaintiffs’ unsuccessful application for summary judgment and this application was dismissed with costs reserved in the cause.2 Associate Judge Johnston found:
[14] I do not doubt that the plaintiffs regard themselves as having a case that justified an application for summary judgment. The mere fact that they were unsuccessful is not to the point. In order to take the case outside the general rule identified in Philpott, there would need to be a degree of inappropriateness or even an impropriety in the conduct of the case of the unsuccessful plaintiff. The correspondence that the defendant has put before the Court strikes me as nothing more or less than a well-developed argument on the part of the defendant as to why the plaintiffs will not succeed in their claim proceeding. I do not see that that can alter the position.

[15] In the end I am not convinced that this case falls even close to those cases which have been treated as exceptions to the Philpott approach. As Mr Webster submits those cases are truly exceptional.

[7] On 25 November 2022, the plaintiffs filed an amended statement of claim, adding a claim for alleged rental arrears. On 19 January 2023, the defendant filed an amended statement of defence.

[8] The substantive application was set down for a three-day hearing commencing on 10 July 2023.

[9]On 14 February 2023, the defendant vacated the property.

[10]…

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 Marr v Kennington

Details

AGLC: Marr v Kennington [2023] NZHC 1245
Case: [2023] NZHC 1245
Decision Date: 25 May 2023

CaseChat Overview and Summary

The case of Marr v Kennington involves a costs dispute arising from a now redundant application for an order for possession of a property in Napier. Patricia Marr and Kevin Roberts, the plaintiffs, sought to sell a property they had purchased from Wayne and Elizabeth Kennington. The defendant, Angela Kennington, who was living in the property at the time of the sale, refused to vacate it. The plaintiffs applied for an order for possession, but this was declined by Associate Judge Johnston on the basis that there were factual controversies that warranted a full hearing. The defendant sought costs in relation to the unsuccessful application for summary judgment, which was dismissed with costs reserved. The substantive application for an order for possession was set down for a three-day hearing, but on 14 February 2023, the defendant vacated the property. The parties were unable to resolve the issue of costs of the proceeding to date. The plaintiffs sought an order for costs on an indemnity basis in respect of both the summary judgment application and the substantive proceeding, while the defendant claimed she was entitled to costs on the summary judgment application, which she successfully defended, but that costs in the substantive proceeding should lie where they fall.

The court had to determine whether the plaintiffs were entitled to costs of the proceeding to date and, if so, the basis on which those costs should be awarded. The court considered the principles governing the Court’s discretion to award costs, which are well established. Questions of costs are ultimately a matter of discretion, the overall objective being to achieve an outcome that best meets the interest of justice. The Court may order a party to pay increased costs where the party opposing costs has contributed unnecessarily to the time or expense of the proceeding or a step in it. Indemnity costs may be ordered if, for example, the party has acted vexatiously, frivolously, improperly, or unnecessarily in commencing, continuing, or defending a proceeding or step in a proceeding. The court also considered whether it was sufficiently clear that there is a link between the proceeding and the outcome to conclude that the plaintiffs had succeeded for costs purposes.

After reviewing the authorities and the submissions of the parties, the court concluded that it was insufficiently clear that there is a link between the proceeding and the outcome such that it can safely conclude that the plaintiffs have succeeded for costs purposes. The court found that the outcome which best meets the interests of justice is for costs to lie where they fall. The court also found that the plaintiffs’ claim for indemnity or increased costs did not meet the threshold for such costs. Therefore, the court ordered that costs should lie where they fall, including for the summary judgment application.

Orders