Mortenson v Tui - [2019] NZHC 1033

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-14

[2019] NZHC 1033

UNDER the Property Law Act 2007

IN THE MATTER

of an application for an order for sale under s 339

BETWEEN

PENEUILA MORTENSON

Applicant

AND

HENRY TUI as executor of the will of NAUMALILA LEOTA aka PEPE NAUMALILA TUI

Respondent

Hearing: On the papers

Counsel:

SC Munro for applicant SI Perese for respondent

Judgment:

13 May 2019

JUDGMENT OF FITZGERALD J

[As to costs]

This judgment was delivered by me on 13 May 2019 at 11.30am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Galbraiths Lawyers, Auckland
Saseve Solicitors, Auckland (T Saseve)

Mortenson v Tui [2019] NZHC 1033 [13 May 2019]

Introduction

[1] In my judgment dated 5 March 2019, I made orders under s 339 of the Property Law Act 2007 for the sale of a property of which the applicant and respondent are co- owners.1 Those orders were in fact made by consent. Having been served with the proceedings, the respondent did not file any opposition and agreed to the property being sold.

[2] The applicant now seeks costs in relation to the commencement of these proceedings.

Factual background and costs submissions

[3] The background to the proceedings is set out in my substantive judgment.2 But in short, the applicant held the majority share in the property, at 70 per cent. The respondent held the remaining 30 per cent as executor of his late mother’s will, which required he distribute his mother’s estate equally among his siblings. Obviously, the respondent would not be able to do so without the property being sold.

[4] The applicant filed an affidavit in support of her application to the effect that she had difficulties communicating and dealing with the respondent (her brother) in order to progress and arrange the sale. She said the proceedings therefore had to be filed as a “last resort”, in response to which the respondent consented to the orders. Counsel for the applicant says that in those circumstances, the proceedings were wholly unnecessary, and costs should follow the event in the ordinary way (on a scale 2B basis).

[5] The respondent disputes that the applicant was “forced” to make an application to the Court. In a memorandum filed in opposition to the costs application, the respondent disputes that he had been difficult in terms of communicating on the sale of the property. Counsel for the respondent states that once the application had been served on the respondent, he cooperated fully and promptly, such that a costs award is not necessary.

1 Mortenson v Tui [2019] NZHC 338.
2 At [3]-[8].

Discussion

[6] Having considered the matters raised by the parties, I am clear that costs should follow the event in the ordinary way. Ultimately, proceedings were commenced and served, and the applicant has been wholly successful on them. The very fact that the respondent’s consent to a sale only came…

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 Mortenson v Tui

Details

AGLC: Mortenson v Tui [2019] NZHC 1033
Case: [2019] NZHC 1033
Decision Date: 13 May 2019

CaseChat Overview and Summary

In Mortenson v Tui, the applicant sought costs in relation to the commencement of proceedings under the Property Law Act 2007 for an order for sale of a jointly owned property. The applicant held a 70% share in the property, while the respondent, as executor of his late mother’s will, held the remaining 30%. The respondent needed to sell the property to distribute the estate equally among his siblings, but he had difficulties dealing with the applicant to progress the sale. The applicant filed an affidavit stating that the proceedings were a "last resort" due to the difficulties in communication and dealing with the respondent. Counsel for the applicant argued that the proceedings were wholly unnecessary and that costs should follow the event in the ordinary way on a scale 2B basis. The respondent disputed that the proceedings were necessary and argued that once served, he cooperated fully and promptly, so a costs award was not necessary.

The court considered the matters raised by the parties and found that costs should follow the event in the ordinary way. The court inferred that but for the proceedings, there would have continued to be delays in the sale of the property. The court also found that the sworn affidavit material before it indicated there were difficulties in progressing the matter promptly in the absence of court proceedings. However, the court was not persuaded that costs should be awarded on a scale 2B basis, as the proceedings were extremely straightforward. The court categorised the proceedings as category 1 proceedings, able to be conducted by counsel considered junior in the High Court, and categorised the steps by reference to Band A. The court awarded costs and disbursements on a scale 1A basis, totalling $3,127.

The court noted that if the costs award in favour of the applicant calculated on a scale 1A basis is greater than the actual costs incurred, then only the actual costs would be payable. However, the court found no basis to suggest in this case that the applicant’s actual costs do exceed scale costs on a 1A basis. The court expected and understood that counsel do not advance scale costs claims on their client’s behalf which exceed actual costs incurred. The court made a costs order in favour of the applicant against the respondent for those steps set out in the applicant’s memorandum on costs, on a scale 1A basis, and awarded the disbursements claimed in the memorandum.

Orders