Miah v National Mutual Life Association of Australasia Ltd
[2016] NZCA 590
•8 December 2016 at 3.30 pm
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| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA554/2015 [2016] NZCA 590 |
| BETWEEN | ABDUR RAHIM MIAH |
| AND | THE NATIONAL MUTUAL LIFE ASSOCIATION OF AUSTRALASIA LIMITED |
| Hearing: | 13 October 2016 |
Court: | Miller, Cooper and Asher JJ |
Counsel: | R J Hooker for Appellant |
Judgment: | 8 December 2016 at 3.30 pm |
JUDGMENT OF THE COURT
A The appeal is allowed.
BThe decision entering defendant’s summary judgment is quashed.
CCosts are fixed and reserved.
____________________________________________________________________
REASONS OF THE COURT
(Given by Asher J)
Introduction
Abdur Miah and his wife Afrouza Miah in 2006 entered into a life insurance policy over the life of Mrs Miah with National Mutual Life Association of New Zealand Ltd (AXA). Mr Miah was bankrupted in April 2007, and shortly after that in May 2007 Mrs Miah died. Mr Miah’s interest in the policy passed to the Official Assignee because of the bankruptcy. AXA avoided the policy for material non‑disclosure. The Official Assignee accepted AXA’s decision and did not pursue a claim.
Mr Miah has sued AXA in his latest amended statement of claim on various grounds including in his alleged capacity the executor of his wife’s half share of the life insurance benefit. The question in this appeal is whether he has any available cause of action as executor of the estate of Mrs Miah. It is said by AXA that Mr Miah has no cause of action as executor because the life insurance benefit was payable only to Mr Miah as the surviving policy owner and his interest passed to the Official Assignee on his bankruptcy. This argument was accepted by Associate Judge Doogue, who in the judgment under appeal entered defendant’s summary judgment for AXA against Mr Miah.[1]
[1]Miah v The National Mutual Life Association of Australasia Ltd [2015] NZHC 993.
AXA also supports the decision of the Associate Judge on the ground that the proceeding should be struck out as an abuse of process.
Narrative
The material facts are few. In June 2006 AXA issued a policy over the life of Mrs Miah. It was matched by an identical policy issued over Mr Miah’s life. The policy named the “Policy Owner” as Abdur Miah and Afrouza Miah. It provided a life insurance benefit of $2 million payable on the death of Mrs Miah and a trauma insurance benefit of $100,000. On 4 April 2007 Mr Miah was bankrupted.
It is said that Mrs Miah executed two wills, one on 5 May 2007 and one on 11 May 2007. Both focused on the policy, the first identifying it by number and stating that she was the first owner and owned 50 per cent of the benefit. Her husband was the second owner with a 50 per cent policy benefit for the benefit of his estate. The second will stated that her husband would distribute the policy to her family and creditors. The wills, which were evidently completed in Bangladesh, were produced at a very late stage of the hearing below. For that reason, and perhaps because of their remarkable focus on the details of policy ownership, AXA denies that the wills are genuine.
Mrs Miah was in Bangladesh in May 2007. She was murdered there on the 22nd of that month. It appears from the judgments in the Courts below that Mr Miah’s brother was convicted of her murder, but before us counsel could not confirm it. We were given to understand that Mr Miah himself was tried in absentia and acquitted.
On 5 July 2007 Mr Miah made a claim to AXA for the life insurance benefit. AXA investigated the claim and avoided the policy on grounds of material non‑disclosure. It was said by AXA that contrary to the information the Miahs supplied when applying for the policies, the Miahs were in serious financial difficulty. The Official Assignee accepted that avoidance. Nothing we say in this judgment is intended to convey the impression that the Official Assignee was wrong to do so, or to suggest that AXA will not succeed in avoiding the policy on that ground. The Official Assignee refused to assign to Mr Miah the right to sue on the policy, and that decision was challenged by Mr Miah and upheld by Associate Judge Christiansen on appeal.[2]
[2]Miah v Official Assignee [2013] NZHC 2726.
Mr Miah nonetheless brought the present claim, alleging that he was entitled to the benefit of all the policy. He then amended the claim to allege that Mrs Miah’s estate was entitled to part of the sum insured because the Miahs owned the policy as tenants in common in equal shares. He claimed to enforce that right as her executor for her half of the policy (the first cause of action). He further contended that if the policy was jointly owned then that ownership was severed on his bankruptcy so Mrs Miah was entitled to an equal share that he could enforce as her executor (the second cause of action), and that his own interest in the policy was not property that ever vested in the Official Assignee (the third cause of action). Other claims were made, but we need not discuss them because they are not pursued on appeal.[3]
[3]The other causes of action pleaded in the High Court were that even if the respondent had paid the policy money to the Official Assignee, the Official Assignee would have held a large surplus on trust for Mr Miah; that the Official Assignee abandoned any property it had in the policy; and that AXA’s decision that Mr Miah failed to comply with his duty of disclosure attaches to Mr Miah personally.
In the High Court, Associate Judge Doogue granted AXA’s application for summary judgment,[4] which was brought on the basis that there was no seriously arguable claim. He accepted AXA’s submissions that:
(a)Mrs Miah had no entitlement to payment on her death; rather, the benefit vested in Mr Miah alone as survivor; and
(b)on Mr Miah’s bankruptcy all of Mr Miah’s interest in the policy vested in the Official Assignee, with whom that interest remains.
These two issues lie at the heart of this appeal.
[4]Miah v The National Mutual Life Association of Australasia Ltd, above n 1.
This is an appeal from a defendant’s summary judgment. The onus is on the defendant to prove on the balance of probabilities that the plaintiff cannot succeed.[5]
[5]Westpac Banking Corp v M M Kembla New Zealand Ltd [2001] 2 NZLR 298 (CA) at [61].
The parties agree that the first issue turns on construction of the policy, to which we now turn. The resolution of the second issue follows on from the first.
Interpretation
The words of the policy
The policy appears to be in a standard form with details inserted. It is stated to be a “Risk Protection Plan” and includes a life insurance benefit ($2,000,000) and trauma insurance benefit ($100,000). In the schedule it is stated that the events making the amounts payable are the death of the Life Insured (Mrs Miah) or major trauma to the Life Insured (Mrs Miah). It is also stated that, apart from the Income Protection and Business Expenses components referred to in the policy that were not taken up by the Miahs, “All other Benefits are payable to you”.
“You” is defined as “the Policy Owner”. The definition of “Policy Owner” provides:
Means the person or persons named as Policy Owner in the Schedule and if more than one means all such persons jointly.
(Emphasis added)
The schedule under Policy Details states:
Policy Owner: Abdur Miah
Afrouza Miah
The plain meaning of all these clauses is that this is a jointly owned policy, and all benefits are payable to the joint owners, Mr and Mrs Miah. Thus it could be expected that the Miahs as co-owners were each contractually entitled jointly to the whole of the life or the trauma insurance benefit, and would receive that benefit jointly.
Insurance policies such as these can be jointly owned as either tenants in common or as joint tenants.[6] Some benefits under a jointly owned policy may be payable to the policy owners jointly and others may not.[7]
[6]This was accepted in Murphy v Murphy [2003] EWCA Civ 1862, [2004] Lloyd’s Rep IR 744 at [15]–[16] and [31]; and Lim (A Child) v Walia [2014] EWCA Civ 1076, [2015] 2 WLR 583 at [19]. It has been said that it is not technically correct to refer to a “tenancy” for co-ownership of property other than real estate, but the term is conventionally used in this way: Dennis v Dennis (1971) 124 CLR 317 at 325.
[7]Murphy v Murphy, above n 6, at [21].
Mr Hooker who appeared for Mr Miah submitted, as we understand it, that the policy was owned as tenants in common. In the alternative, he submitted it was held by the Miahs in a joint tenancy, which was severed on Mr Miah’s bankruptcy. Mr Knight for AXA on the other hand submitted that a proper construction of the policy was that the life insurance benefit was payable to Mr Miah alone as the sole survivor, and not to Mrs Miah’s estate. The interest was not a joint one and therefore there was no ability to sever. In support of that proposition, both before us and before Associate Judge Doogue, he relied on the background circumstances, the policy wording and English case law.
It can be immediately observed that the clauses we have outlined plainly direct that the payment is to be made to the two co-owners. That would mean that on Mrs Miah suffering a qualifying trauma, they would be paid the trauma insurance benefit jointly. In relation to the life insurance benefit, she would be dead. Should the benefit go to the named co-owners by a half payment to Mr Miah and a half payment to Mrs Miah’s estate, or should the payment go to Mr Miah entirely?
Background circumstances
In interpreting the contract, the background circumstances known to the parties and any inferences that could be drawn from the subject matter of the contract are able to be admitted for consideration.[8]
[8]Vector Gas Ltd v Bay of Plenty Energy Ltd [2010] NZSC 5, [2010] 2 NZLR 444 at [19].
There are no communications leading up to entering into the policy. It is said that Mrs Miah executed two wills, but as we have mentioned there is factual uncertainty about them. In a summary judgment little reliance can be placed on them, given that they were produced late in the High Court hearing, and their bona fides are questioned.
What can be said is that when a couple enter into mutual life insurance policies they are acting cooperatively and for their mutual benefit. The expectation is likely to be that the survivor will benefit. We are prepared to inferr, given that there were between spouses two life policies on each other’s lives created simultaneously and co-owned by both, that the intended beneficiary was the survivor of the two.
Therefore it is our preliminary interpretation of the words used that the parties held the policy jointly, in the position of joint tenants, and that survivorship would apply.
Also it could be expected that, as with all joint tenancies, the doctrine of severance would apply.[9] The parties would not intend the joint tenancy and the survivorship that follows to continue after estrangement. It can be assumed that a couple who enter into mutual life insurance policies are aware of the possibility that they may separate, and would wish to divide their property and terminate the joint tenancy in that event. Importantly for this case, as we will discuss, severance also follows from bankruptcy, and at that point it can be expected that the joint tenancy becomes a tenancy in common.[10]
[9]Hargreaves v Fleming [1975] 1 NZLR 209 (SC) at 214. We note the exception to severance for interests settled under the Joint Family Homes Act 1964: s 9(2)(c).
[10]Bedson v Bedson [1965] 3 All ER 307 (CA) at 319; Re Dennis (a bankrupt) [1992] 3 All ER 436 (Ch) at 438–439; Re Francis (1988) 82 ALR 335 (FCA) at 338–339; and Barron v Hutton HC Auckland CIV-2010-404-7270, 13 September 2011 at [13].
The words of the policy that we have discussed are consistent with this interpretation. The words used are of joint ownership, but there are no words indicating the exclusion of severance. We develop this later in our discussion of the applicability of Murphy.[11]
[11]Murphy v Murphy, above n 6.
Mr Hooker submits that because the word “jointly” is not used before “persons” this indicates several ownership. We disagree. The position of “jointly” is dictated by the grammar of the sentence structure, and the plain meaning is that “if more than one” they own jointly.
The submissions of AXA rely on the ordinary and natural meaning of “policy owner” to argue Mrs Miah ceased to meet the definition upon her death. Mr Knight for AXA submits:
[Policy owners] will include the policy owner life insured where that person is alive. If s/he is not alive (specifically where the benefit is the life insurance benefit) then s/he is no longer a policy owner and payment will therefore be made to the surviving policy owner(s), in this case Mr Miah.
This interpretation differs from the express definition (set out at [13] above) to the effect that the Miahs were the joint owners as the persons named in the schedule. It rests on an assumption that the drafter used a standard form the meaning of which must vary with the particular benefit being provided.
The English authorities relied on in the High Court
Mr Knight relies in particular on Murphy, Re Pritchard (A Bankrupt), and Lim (A Child) v Walia.[12] These decisions conclude that in respect of the death policies being considered, as distinct from endowment and sickness benefits, the contractual intention was that the death benefit would go to the survivor in all circumstances, without the ability to sever. The Associate Judge accepted that they applied, and relied on them in reaching his conclusion that there was no tenancy in place that could be severed by the adjudication on bankruptcy of Mr Miah.[13]
[12]Murphy v Murphy, above n 6; Re Pritchard (A Bankrupt) [2007] BPIR 1385 (Ch); and Lim (A Child) v Walia, above n 6.
[13]Miah v The National Mutual Life Association of Australasia Ltd, above n 1, at [59].
It is necessary to consider these cases. As we set out in more detail below, Murphy and Lim (A Child) v Walia both refer extensively to, and rely on, the particular statutory regime that applies to family inheritance claims in the United Kingdom and the ability to make applications for a benefit from the estate, and for that reason must be approached with caution.
Murphy is a decision of the English Court of Appeal. In England s 9 of the Inheritance (Provision for Family and Dependants) Act 1975 provides that when there is a joint tenancy and a party dies, there can be an application to the Court for an order that the deceased’s severable share be treated as part of the deceased’s net estate. The child of Mr Murphy (the deceased) had made such an application. The policy in question was worded in a similar fashion to the Miah policy, although as we will consider, there were relevant differences. The policy benefit was payable to the “policyholder”, which was defined as “the person(s) named as the policyholder in the policy schedule or his executors, administrators or assignees”. Mr and Mrs Murphy were the named policyholders.
The application failed because the Court held that the plain intention of the policy was that the death benefit was payable to the survivor of Mr and Mrs Murphy.[14] There was nothing to suggest an intention to allow the estate of the deceased to take a half benefit on death.[15] Lord Justice Thomas explained:[16]
… the ordinary inference would be that each had a separate interest; Mrs Murphy would have the sole right to the sum if Mr Murphy died first and Mr Murphy would have that right if she died first. They cannot have intended the right to that benefit was to be defeasible by a notice of severance; it was to be a right to which each was entitled.
[14]Murphy v Murphy, above n 6, at [17].
[15]At [17].
[16]At [19].
The death benefit was always payable to the survivor, or to the executors if both Murphys died.[17] In essence the conclusion was that there was no joint tenancy because the benefit was held by the surviving spouse alone, and therefore severance could not take place.[18]
[17]At [23].
[18]At [19].
In Lim (A Child) v Walia a terminal illness benefit was considered to be held in a severable joint tenancy, and available to the mother when she developed a terminal illness.[19] That benefit, however, evaporated as no claim on the basis of the terminal illness had been made before her death. The value of her severable interest at the time of her death was nil. This case does not assist in interpreting this policy as it was concerned with the payment of the terminal illness benefit, although it does refer without disapproval to the majority decision in Murphy v Murphy.[20]
[19]Lim (A Child) v Walia, above n 6, at [29]–[30] and [46].
[20]At [19] and [44].
Re Pritchard (A Bankrupt) is another case about a terminal illness policy, and it was held that this was a policy held in a severable joint tenancy.[21] The majority decision in Murphy was referred to and relied on.[22] This decision and Lim (A Child) v Walia treated the majority decision in Murphy as stating the law, as have commentators in the leading insurance texts.[23]
[21]Re Pritchard (A Bankrupt), above n 12, at [29].
[22]At [28].
[23]Robert Merkin (ed) Colinvaux’s Law of Insurance (10th ed, Sweet & Maxwell, London, 2014) at [18-029]; John Birds, Ben Lynch and Simon Milnes MacGillivray on Insurance Law (13th ed, Sweet & Maxwell, London, 2015) at [26-261]; and David Kelly and Michael Ball (ed) Kelly and Ball Principles of Insurance Law (looseleaf ed, LexisNexis) at [13.0250].
The policy in this case is different from that in Murphy. We note the specific use of the words “if more than one means all such [owners] jointly”. In Murphy there is no reference to the death benefit being paid “jointly”. This is a material difference.
It may also be that this case may be distinguished because the husband and wife in Murphy were each a life insured and a policy holder under the same policy document. The policy benefit was payable once, on the first to occur of the death or terminal illness of either spouse. In contrast, Mr and Mrs Miah had two separate life policies, each of which named one spouse as the life insured and both as the policy owners. This appears to be a material difference for three reasons.
First, in this situation it is not clear that the survivor should always benefit. The beneficiaries were each insuring their own lives in separate insurance contracts, and they had a half interest in those contracts. In some circumstances, such as separation, the intention may have been that there could be severance.
Second, the separate nature of the policies means that under Mrs Miah’s policy the only “survivor” who could benefit from the life insurance benefit is Mr Miah. That would mean there was little point in naming Mrs Miah as an owner of the life component of the policy. This is a real difference to the Murphy context, where it is perhaps easier to see the point of them both being defined as owners with separate interests in the death benefit contingent on surviving their spouse.
Third, the focus in Murphy on the surviving policyholder is only workable if, as here, Mrs Miah dies first and there is a surviving named person (Mr Miah) to whom the benefit can be paid. If Mr Miah had died first, Mrs Miah would be the surviving policy owner but her policy would continue as it is over her life only. If she subsequently died, there would be no surviving policy owner and in the absence of an express option for payment to her estate (a feature of the definition in Murphy), it would be necessary to revert to the plain meaning of the policy. The benefit would be payable to Mrs Miah and would become part of her estate. Similarly, if the Miahs died at the same time there would be no surviving policy owner and s 3(1)(c) of the Simultaneous Deaths Act 1958 would apply.
In contrast, in Murphy the same interpretation could apply to all contingencies under the policy. If Mr Murphy died first, Mrs Murphy would be the surviving policy holder. If Mrs Murphy died first, Mr Murphy would be the survivor.[24] If both died at the same time, the third option of payment to executors would apply.[25]
[24]Murphy v Murphy, above n 6, at [17] and [19].
[25]At [23].
The difference demonstrated shows that it may be an error to assume that in all circumstances the benefit of the life insurance policy must pass to the survivor. A final answer to this question must await the factual context established at trial.
For these reasons, we disagree with Associate Judge Doogue when he concludes that the policy “does not contain any express provision prescribing to whom payment is to be made on the occurrence of the death of the life insured”.[26] It did contain an express provision; there was to be a payment to the two named owners jointly.
Conclusion on interpretation
[26]At [32].
The policy is open to an interpretation that it is jointly owned by the Miahs in a joint tenancy, and being a joint tenancy, was severable. There may well be nothing in the policy or surrounding circumstances to indicate that severance was excluded. Resolution of the issue must await trial.
Bankruptcy
The bankruptcy of one of the owners of a joint tenancy operates to sever the joint tenancy.[27] This principle was applied by the full court of the Federal Court of Australia in Re Francis.[28] The Court held:[29]
When the estate of the male bankrupt in the land in question became vested in the Official Trustee, the unity of title was immediately destroyed, in that the respective interests of the Official Trustee and the female co-owner in the land did not derive from the same act or document. Nor is there any unity of time between the two estates. The unity of interest also does not exist because the interest of the Official Trustee is impressed with his responsibilities under the Bankruptcy Act 1966 and may, and very likely will, be of less duration than that of his co-owner.
[27]Bedson v Bedson, above n 10, at 319; Re Dennis (a bankrupt), above n 10, at 438–439; and Barron v Hutton, above n 10, at [13].
[28]Re Francis, above n 10, at 339. Wild J in Chong-Nee v Carter HC Wellington CP40/01, 21 March 2002 cast some doubt on the principle, however the point was obiter and had not featured in argument before him: at [33]. The High Court of Australia recently approved the principle in Trustees of the Property of Cummins (a bankrupt) v Cummins (2006) 227 CLR 278 at [14].
[29]At 339.
If the Miahs’ policies were owned as joint tenants, the unity of title was destroyed at the moment of bankruptcy, as the Official Assignee became the half owner, the parties now deriving their interests from different sources.[30] The other unities would also be lost. The Official Assignee’s half interest was of a shorter nature, with different priorities (payment of creditors) to that of Mr Miah. The joint tenancy being at an end, the policy thereafter would be held from the time of bankruptcy by Mrs Miah and the Official Assignee as tenants in common. It is thus arguable that Mr Miah, as Mrs Miah’s executor, has a claim as set out in the second cause of action.
Conclusion on the second cause of action
[30]Insolvency Act 1967, s 2, definition of “property”, and s 42.
It is our view that Mrs Miah’s interest in the policy continues after her death, as the bankruptcy had severed the joint tenancy. That being so, the second cause of action should not have been struck out.
We record that we do not think that the first cause of action is soundly based, as it is not arguable for the reasons we have set out that the policy was held by the Miahs as tenants in common from the outset.
Third cause of action
Mr Hooker argued in his written submissions that, upon the bankruptcy of Mr Miah, the life insurance upon reverted to the owners of the policy and that AXA’s decision to reject the claim was made after Mr Miah was discharged from bankruptcy. This meant that the cause of action accrued after Mr Miah’s discharge and was the property of Mr Miah to pursue. The argument was not pursued in oral submissions.
This argument plainly cannot succeed. If there was entitlement to the proceeds of the life insurance policy, it arose on Mrs Miah’s death and not at any later point of a refusal to pay. As the Associate Judge observed, any right of ownership of the policy could only be enforced by Mr Miah’s personal representative at that time, the Official Assignee.[31]
[31]Miah v The National Mutual Life Association of Australasia Ltd, above n 1, at [66].
We agree with the Associate Judge that the third cause of action is not tenable.[32]
Abuse of process?
[32]At [61]–[67].
AXA also supports the Associate Judge’s decision on the ground that the proceeding should be struck out as an abuse of process. AXA submits that Mr Miah’s proceeding constitutes a collateral attack on the decision of Associate Judge Christiansen in that a necessary premise of that decision was that the policy and any rights to receive payment under it, or take proceedings in respect of it, were vested in the Official Assignee.[33]
[33]Miah v Official Assignee, above n 2; and see [7] above.
The decision of Associate Judge Christiansen was on appeal under s 86 of the Insolvency Act 1967 from a decision of the Official Assignee. The decision addressed the narrow point of whether the Official Assignee’s refusal to assign the life policy to Mr Miah was unreasonable.[34] It was held, after a review of the background and facts, that it was not unreasonable.[35]
[34]At [108].
[35]At [125].
We do not accept that Mr Miah’s claim is an abuse of process. As the Supreme Court held in Lai v Chamberlains:[36]
[61] There is no general rule of law that the opinion of a Court expressed in a judgment cannot be questioned in different proceedings, outside the circumstances of autrefois acquit/convict or cause of action and issue estoppel. Collateral challenge will not therefore always be an abuse. The circumstances in which proceedings may amount to an abuse of process are varied.
[36]Lai v Chamberlains [2006] NZSC 70, [2007] 2 NZLR 7.
We are concerned now with the second cause of action, which has nothing to do with the refusal to assign. It is claimed in that second cause of action that Mrs Miah was entitled to an equal share in the life policy that Mr Miah could enforce as her executor. That cause of action does not contest the Official Assignee’s entitlement to a half share as Mr Miah’s successor. Such a claim is not therefore a collateral challenge to the Associate Judge’s decision, and does not render the decision hypothetical. That decision still applies to the half share.
The fact that Mr Miah’s position at the earlier hearing was that he was entitled to all the proceeds of the policy and not one half, gives rise to no estoppel or abuse of the Court’s process.[37] We see nothing to stop Mr Miah in this proceeding putting forward a position of personal entitlement to half the policy proceeds. The judgment of Associate Judge Christiansen is still relevant in relation to his half. Any inconsistency is legitimately a matter for comment at the trial. The appeal under s 86 of the Insolvency Act 1967 was not hypothetical, as it has settled a point in relation to Mr Miah’s entitlement to an assignment.
[37]Associate Judge Christiansen was not asked to rule on, or indeed consider, the nature of Mr Miah’s right to survivorship. Indeed we doubt that issue could have been raised on the appeal before him.
Associate Judge Christiansen did not in his decision go into the merits of AXA’s refusal to pay. The case before him concerned a review of the Official Assignee’s terms for an assignment.[38] The non-disclosure argument and any other affirmative defences, are yet to be determined. If there are any matters of issue estoppel in relation to the other causes of action they are better raised at a hearing rather than summary judgment.
General conclusion
[38]Miah v Official Assignee, above n 2, at [105].
The reasons set out in the first cause of action and third and subsequent causes of action do not appear to be tenable. However, for the reasons that we have given the second cause of action is arguable and should not have been struck out. We repeat that we express no view about AXA’s claim that the policy was properly avoided for material nondisclosure. We have decided only that it is arguable that at the time of her death Mrs Miah’s estate had an interest in the policy.
The Court’s discretion to enter summary judgment for a defendant under r 12.2(2) of the High Court Rules can only be invoked if the defendant satisfies the Court that “none of the causes of action in the plaintiff’s statement of claim can succeed”. Given that one can succeed the Court will not strike out individual causes of action while one remains. The application for defendant’s summary judgment must accordingly fail and this appeal must be allowed.
Result
For these reasons the appeal is allowed.
The decision entering defendant’s summary judgment is quashed.
We have considered the question of costs. Costs would be on a band A basis with usual disbursements. The usual rule that costs on an opposed interlocutory application become payable when they are fixed does not apply to an application for summary judgment.[39] Mr Miah has succeeded only on some of the arguments he put forward. Others have failed. There have been significant changes of position by Mr Miah during the course of the proceeding. Clearly the proceeding will be stoutly defended. In these circumstances we consider it would be premature to make a costs order.
[39]High Court Rules, r 14.8(3). There is no settled practice as to the awarding of costs when a defendant fails to obtain summary judgment. In Schmidt v Registrar-General of Land [2015] NZHC 2438, (2015) 22 PRNZ 794 and EBS v CAS [2014] NZHC 2929 costs were reserved following an unsuccessful application. In contrast costs were awarded in Surhananv Brookfields [2013] NZHC 586, (2013) 22 PRNZ 790 and Judge v Dempsey [2014] NZHC 2864.
Therefore we direct that costs are to be fixed and not to be paid until final resolution in the High Court.
We leave any issues arising in relation to High Court costs to be determined there.
Solicitors:
Vallant Hooker & Partners, Auckland for Appellant
Chapman Tripp, Wellington for Respondent
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