Mills v Dalzell - [2023] NZHC 1530

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2022-454-9

[2023] NZHC 1530

BETWEEN
LYNETTE JOY MILLS

First Plaintiff

CARL JAMES PETERSON
Second Plaintiff

AND

KELLY DALZELL

First Defendant

TRACY LEVENBACH
Second Defendant (Deceased)

ASB BANK LIMITED

Third Defendant

GRAHAM HOWARD MILLS
Fourth Defendant

JOHN LEVENBACH
Fifth Defendant

CAROL KRAMMER

Sixth Defendant

Hearing: On the papers

Appearances:

Plaintiffs in Person

S C Gollin and S L Michelsen for First and Third Defendants No appearance for Second Defendant

J R Sparrow and S T Hartley for Fourth Defendant K B Perrett for Fifth and Sixth Defendant

Judgment:

20 June 2023

JUDGMENT OF ASSOCIATE JUDGE SKELTON

[Application for stay of costs award pending appeal]

MILLS v DALZELL [2023] NZHC 1530 [20 June 2023]

[1] In a substantive judgment dated 23 September 2022, Associate Judge Johnston struck out the plaintiffs’ claim in this proceeding in its entirety.1

[2] In a costs judgment dated 23 November 2022, Associate Judge Johnston ordered that the plaintiffs are to pay each of the three groups of defendants scale costs at a 2B rate increased by 33 per cent.2 Costs orders have been sealed for the first and third defendants in the sum of $17,007.50 (costs and disbursements); for the fourth defendant in the sum of $16,647.67; and for the fifth and sixth defendants in the sum of $28,202.00. The second defendant has died and her personal representative or representatives have not entered any appearance.

[3] On 12 October 2022, the plaintiffs lodged a notice of appeal against the substantive judgment of Associate Judge Johnston dated 23 September 2022. The plaintiffs have not appealed the costs judgment.

Current application

[4] The plaintiffs now apply by way of interlocutory application to stay the costs orders of Associate Judge Johnston dated 23 November 2022 until the appeal has been determined. The application is dated 14 December 2022 and is supported by an affidavit of Carl James Peterson dated 13 January 2023, a memorandum in support of the application dated 13 January 2023 and a memorandum concerning a stay of costs application dated 20 April 2023.

[5] Counsel for the fifth and sixth defendants filed a memorandum in which they state that the fifth and sixth defendants do not consider there to be grounds for a stay of enforcement but do not formally oppose the plaintiffs’ application and will abide the decision of the Court. This is primarily due to the desire to avoid incurring further costs. Counsel for the fourth defendant has filed a memorandum to the same effect. The fourth defendant also reserves his rights in respect of, and would seek to be heard in relation to, any application by the plaintiffs for costs on this application.

1 Mills v Dalzell [2022] NZHC 2439.
2 Mills v Dalzell [2022] NZHC 3067.

[6] The first and third defendants have filed a notice of opposition dated 19 December 2022 and a memorandum of counsel in support of that notice…

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 Mills v Dalzell

Details

AGLC: Mills v Dalzell [2023] NZHC 1530
Case: [2023] NZHC 1530
Decision Date: 20 June 2023

CaseChat Overview and Summary

In Mills v Dalzell, the plaintiffs sought an interlocutory stay of enforcement of the costs orders pending appeal against the substantive judgment. The substantive claim was struck out and the plaintiffs sought to stay the costs orders pending the determination of their appeal. The first and third defendants opposed the application, while the fourth, fifth and sixth defendants did not oppose the application but reserved their rights. The court noted that the plaintiffs were entitled to the fruits of their judgment, but considered the factors relevant to the stay of execution of a costs order, including the potential for unnecessary hardship and the balance of convenience. The court found that there was a risk of unnecessary hardship if the plaintiffs were forced to sell their properties at this stage, and that the defendants could proceed with enforcement steps but with the reservation that a stay could be ordered if the steps reached the stage of sale of the plaintiffs' properties. The application for a stay of execution was therefore adjourned, with leave reserved to bring the application on again if necessary. The court did not order costs on this decision, but invited any party seeking costs to file a memorandum not exceeding five pages, with an opportunity for other parties to file a response memorandum.

Orders