Mills v Dalzell - [2022] NZHC 3067

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2022-454-9

[2022] NZHC 3067

UNDER Parts 12 and 15 of the High Court Rules

BETWEEN

LYNETTE JOY MILLS

First Plaintiff

CARL JAMES PETERSON
Second Plaintiff

AND

KELLY DALZELL

First Defendant

TRACY LEVENBACH
Second Defendant

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

B J Upton and S L Hawksworth for First and Third Defendant No appearance for Second Defendant
J R Sparrow and S T Hartley for Fourth Defendant
B R Webster and W L Abrie for Fifth and Sixth Defendants

Judgment:

23 November 2022

MILLS v DALZELL [2022] NZHC 3067 [23 November 2022]

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[Costs]

[1] In my substantive judgment dated 23 September 2022 I struck out the plaintiffs’ claim in its entirety. In the concluding paragraph I reserved costs in the expectation that the parties would be able to resolve these. Regrettably, they have not been able to do so. I now have memoranda from the three groups of defendants (the first and third defendants; the fourth defendant; and the fifth and sixth defendants — the second defendant has died and her personal representative or representatives have not entered an appearance). The plaintiffs, who are self-represented, have replied.

[2] As a result of the fact that there are several parties involved, with different interests, there is a substantial amount of material before the Court in relation to costs. Having regard to the terms of the plaintiffs’ response, to which I will come in due course, I do not propose to analyse this material in detail. In any event, costs determinations do not usually call for lengthy judgments, unless of course they raise new issues.

[3] The basic principles are well established and very clear. Costs are governed by pt 14 of the High Court Rules 2016. They are quintessentially a matter for the Court’s discretion, though, of course, like all discretions, this must be exercised on a principled basis. The starting point is that costs generally follow the event, that is to say that the successful party is entitled to a costs award. As to quantum, the presumption is that, in all but exceptional cases, costs are awarded in accordance with the scales in the schedules to the rules. Those schedules are intended to introduce an element of objectivity into costs assessments so that costs are predictable and litigants and their advisers know, from the outset, the likely range of any costs award. The costs regime, however, does recognise that there are exceptional cases and confers on the Court a discretion to award decreased and increased costs in exceptional cases. At one extreme that extends to awarding the successful party increased scale costs or even solicitor-and-client (indemnity) costs.

[4] In this case, all three groups of defendants who were represented at the hearing seek increased costs.

[5]They…

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 [2022] NZHC 3067
Case: [2022] NZHC 3067
Decision Date: 23 November 2022

CaseChat Overview and Summary

In the High Court of New Zealand, the plaintiffs Lynette Joy Mills and Carl James Peterson sought to bring claims against several defendants, including Kelly Dalzell, Tracy Levenbach, ASB Bank Limited, Graham Howard Mills, John Levenbach, and Carol Krammer. The plaintiffs' claims were struck out in their entirety, and the matter now pertains to the determination of costs. The court was tasked with deciding whether the plaintiffs' claims were so hopeless as to warrant an award of increased or indemnity costs to the defendants.

The court held that the plaintiffs' claims were doomed to fail from the outset due to the absence of evidence supporting the allegations of fraud and the time-barred nature of the claims. Additionally, the plaintiffs commenced the action despite the clear terms of a Settlement Deed, which precluded the claims from being brought against certain defendants. The court found that the plaintiffs' claims were advanced with a "wilful disregard of known facts or established law," and they lacked a genuine motivation beyond attempting to avoid their contractual obligations under the deed. The court considered that the plaintiffs, who were self-represented, should have been aware that their claims could not succeed.

The court determined that while the case reached the threshold for an order for indemnity costs, it was more appropriate to award the defendants scale costs with an uplift of 33% to reflect the circumstances. The court emphasized that the plaintiffs' lack of independent legal advice should be taken into account when assessing costs. The court rejected the plaintiffs' argument that the appeal should stay the costs orders, as an appeal does not operate as a stay and the court should determine costs at this stage.

The court ordered that the plaintiffs pay to each of the three groups of defendants scale costs at a 2B rate increased by 33%.

Orders