McCrae v Graham

[2013] NZHC 324

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2012-485-1202 [2013] NZHC 324

BETWEEN  CHRISTOPHER WILLIAM MCRAE Plaintiff

ANDMARY JOYCE GRAHAM Defendant

Judgment:      26 February 2013

JUDGMENT AS TO COSTS OF ASSOCIATE JUDGE D.I. GENDALL

Under r 11.5 of the High Court Rules I direct the Registrar to deliver this judgment at 3.30 pm on 26 February 2013.

Solicitors:           Hughes Robertson Law, Solicitors, PO Box 2513, Wellington 6140

Family Law Specialists Ltd, Solicitors, PO Box 50-513, Porirua

CW MCRAE V MJ GRAHAM HC WN CIV-2012-485-1202 [26 February 2013]

[1]      This judgment relates to costs with respect to the dismissal by this Court of

the plaintiff’s summary judgment application and an order staying this proceeding. [2]       The plaintiff issued the present proceeding on 13 June 2012 seeking:

(a)       An order that the plaintiff is entitled to the funds in dispute as I

understand it being approximately $207,000.00; (b)    Summary judgment on his statement of claim;

(c)       An interlocutory application for an order for urgent distribution of the funds in question.

[3] As to the third matter noted at [2](c) above, being the application for an urgent distribution order, a joint memorandum of counsel was filed in this proceeding on 14 June 2012. This authorised release of $100,000.00 to the plaintiff, he having earlier received the sum of $10,000.00 by consent of the parties. These sums represented more than a one-half share of the total pool of funds held being a little over $207,000.00 as noted above.

[4]      That said, the defendant does not seek any award of costs in relation to the application for urgent distribution nor is any costs order sought by the plaintiff. There is to be no order made as to costs on that application.

[5]      I turn now to the order sought by the plaintiff in the substantive proceeding noted at para [2](a) above.  On 23 October 2012 in this Court an order was made staying the substantive proceeding.  At that time Mr Hughes appeared as counsel for the plaintiff and indicated that he had no instructions from Mr McRae and could not oppose the stay order (or indeed the summary judgment order) sought then.

[6]      Counsel for the defendant has now confirmed that no costs are sought with regard to the substantive proceeding to this point as the defendant has not been put to the cost of preparing a formal statement of defence.

[7]      There is to be no order as to costs made at this point on the substantive proceeding.

[8]      Lastly I turn to consider the plaintiff’s summary judgment application noted at para [2](b) above.   On this application, on 16 July 2012 the defendant filed a Notice of Opposition supported by a detailed affidavit.

[9]      Having  received  the  defendant’s  Notice  of  Opposition  and  supporting affidavit it is clear that the plaintiff has failed to advance this application.  It was the subject of a number of adjournments until the summary judgment application was finally dismissed by this Court on 23 October 2012.

[10]    The defendant therefore seeks an order for category 2B basis costs on her successful opposition to this summary judgment application.  A calculation of this amount has been set out at para [14] of the memorandum from counsel for the defendant dated 9 November 2012 filed in this proceeding.  The costs sought in this calculation  total  $1,990.00  together  with  disbursements  (a  Court  filing  fee)  of

$108.80.

[11]     Mr  Hughes,   counsel   for  the  judgment   creditor,   has   himself   filed   a memorandum on costs in response dated 15 November 2012.  Although he indicates that he has still received no updated instructions or communication from the plaintiff and technically he is without instructions in this matter, he wished to put before the Court one matter he requested be taken into account when considering this costs issue.

[12]     This is the contention by Mr Hughes that the present proceeding in this Court should not have been necessary had the defendant it is said responded reasonably to the plaintiff’s request for the release of monies which were held prior to the issue of the proceedings.

[13]     Mr Hughes indicates that the plaintiff’s personal circumstances should be seen as of some relevance here.  These are that he was apparently living on the street without  any  financial  support  either  by  way  of  benefit  or  otherwise,  had  been

forcibly  ejected  from  his  home  subject  to  a  mortgagee  sale,  and  was  in  effect destitute for a period of weeks prior to the issue of these proceedings.  During this period the defendant it is claimed refused to release any money to the plaintiff alone, despite knowing these circumstances.

[14]     On all these matters, what is clear to me is that once the present proceeding was issued, the next day payments totalling $110,000.00 were agreed and then released to the plaintiff.

[15]    As to these matters a joint memorandum of Mr Hughes as counsel for the plaintiff and Mr Cochrane as counsel for the defendant dated 14 June 2012 is significant.  This memorandum was filed in this Court 1 day after the plaintiff’s original statement of claim was filed and well before the defendant’s Notice of Opposition to the plaintiff’s summary judgment application was filed.

[16]     And, that  memorandum  of counsel  sought by consent  that  the following orders be made by this Court:

(a)      An order that all funds held by Sanderson Weir (the $207,000.00 in issue here) are immediately paid into the trust account of Hughes Robertson, Solicitors, Wellington.

(b)Hughes Robertson are to disburse the payment of $100,000.00 to the plaintiff  and   the   remaining  funds  are  to   be   held   in   Hughes Robertson’s trust account on interest bearing deposit pending consent of the plaintiff and defendant or order of the Court.

(c)      The costs of the interlocutory application for distribution of funds are reserved.

[17]     An order to the effect noted in the preceding paragraph was made by consent by His Honour Justice Dobson also on 14 June 2012.

[18]     The  $100,000.00  payment,  together  with  the  earlier  $10,000.00  payment noted above, were made to the plaintiff.

[19]   Notwithstanding this, however, the plaintiff continued with his present proceeding.  The defendant as noted above filed her Notice of Opposition to the summary judgment application on 17 July 2012.   That summary judgment application was dismissed by order of this Court on 23 October 2012.

[20]     The authorities note that costs on a dismissed summary judgment application are generally reserved to be dealt with when the substantive proceeding is finally resolved – r 14.8(3) High Court Rules.  In the present case, however, the plaintiff’s substantive proceeding is stayed and from indications given to the Court by his counsel Mr Hughes, there would seem to be little likelihood that it is to be pursued. As  I  understand  the  matter,  issues  regarding  the  balance  of  approximately

$100,000.00 held in the Hughes Robertson trust account are now before the Family

Court.

[21]    That said, in my view, this is one of those rare cases where costs on the dismissed summary judgment application  should be dealt with now, particularly given that an order has been made staying this proceeding.

[22]    And, given that the defendant has been entirely successful in having that summary judgment application dismissed by this Court I see no reason why costs should not follow the event in the usual way.

[23]     Costs are therefore awarded to the defendant against the plaintiff as sought on the dismissed summary judgment application on a category 2B basis amounting to

$1,990.00 together with disbursements being a filing fee of $108.80.

‘Associate Judge D.I. Gendall’