Morley v Browne - [2019] NZHC 3170

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-1587

[2019] NZHC 3170

UNDER Part 19 of the High Court Rules and s 52 of the Trustee Act 1956

IN THE MATTER

of an application for vesting of land in existing trustees

BETWEEN

ROSS BRADEN MORLEY and VIVIENNE JUDITH MORLEY (nee HAMBLY) as

trustees of the WAIMANA TRUST Applicants

AND

SCOTT LAWRENCE BROWNE

Respondent

Hearing: On the papers

Counsel

T J Herbert for the Applicants M Phillipps for the Respondent

Judgment:

4 December 2019

JUDGMENT OF GAULT J

(Costs)

This judgment was delivered by me on 4 December 2019 at 10:30 a.m. pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:
Mr T J Herbert, Barrister, Auckland
Mr M Bright (applicants’ instructing solicitor), Johnston Prichard Fee Ltd, Auckland Mr M Phillipps, Vicki Ammunsen Trust Law Ltd, Auckland

MORLEY v BROWNE [2019] NZHC 3170 [4 December 2019]

[1] The applicants seek costs following withdrawal of their application for summary judgment by consent after the respondent provided an authority and instruction (A&I) form for transfer of the property in issue in the proceeding. As that obviated the need for the orders sought, the proceeding is at an end subject to the determination of costs.

[2] The parties proposed that the Court deal with costs on the papers, and Lang J made directions by consent for the filing of costs submissions.

Submissions

[3] The applicants seek costs on the basis that there should have been no need for them to bring their application had the respondent acted reasonably. The applicants say the respondent had retired as a trustee in July 2016, agreeing to transfer all assets, but the parties had then been in a dispute over a failed business venture. The respondent ignored a letter seeking the transfer before proceedings were issued, objected to the proceedings in correspondence, before signing the A&I form soon after his papers in opposition.

[4] The applicants submit that where a former trustee fails to transfer assets, there is a presumption that if proceedings have to be issued the former trustee pays their price.

[5] The applicants say costs on a 2B basis would be $14,579 plus disbursements of $1,073.50. The applicants seek a 50 per cent uplift on the basis that the respondent has contributed unnecessarily to the time or expense of the proceeding or a step in it by failing to comply with the Rules or with the direction of the Court, taking or pursuing an unnecessary step or an argument that lacks merit, and failing without reasonable justification to admit facts, evidence, documents or accept a legal argument.

[6] The applicants also say that an award of costs would fall outside the respondent’s indemnity from the Trust.

[7] The respondent opposes costs and, relying on his trustee indemnity, seeks an order that costs lie where they fall. The respondent says the applicants failed to take steps to vest the…

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 Morley v Browne

Details

AGLC: Morley v Browne [2019] NZHC 3170
Case: [2019] NZHC 3170
Decision Date: 4 December 2019

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Morley v Browne involved an application for the vesting of land in existing trustees. The applicants, Ross Braden Morley and Vivienne Judith Morley, sought costs following the withdrawal of their application for summary judgment by consent. The respondent, Scott Lawrence Browne, had provided an authority and instruction (A&I) form for the transfer of the property in issue, rendering the application unnecessary. The court was tasked with determining the appropriate costs order in light of the resolution of the matter by consent.

The legal issues the court had to decide included whether the applicants were entitled to costs given that the respondent had ultimately complied with the court's requirements, and whether the respondent's conduct justified an award of increased costs. The applicants argued that the respondent's failure to transfer assets and cooperate earlier should result in an uplift in costs, while the respondent opposed this, asserting that costs should lie where they fall given the resolution by consent.

Gault J concluded that costs should lie where they fell, rejecting the applicants' argument for an uplift in costs. The court held that the cases cited by the applicants, which involved costs against a former trustee who refused to transfer following court vesting orders, were inapplicable. The court emphasized that a party claiming increased costs must persuade the court that such an award is justified, which the applicants had not done. The court further noted that the costs should reflect the parties' conduct during litigation rather than before it. Although the applicants had achieved their end by consent rather than judgment, Gault J found that a post-discontinuance inquiry into the reasonableness of the parties' conduct would be inconsistent with the objectives of the cost rules. The court decided against making an order as to costs.

In summary, the High Court determined that the resolution of the matter by consent, despite the applicants' earlier claims of unreasonable conduct by the respondent, did not justify an award of increased costs. The decision highlighted the importance of the objectives of the cost rules in avoiding extensive inquiries into the conduct of parties post-discontinuance.

Orders