Murphy v Murphy
[2013] NZHC 1151
•20 May 2013
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CIV-2010-463-797 [2013] NZHC 1151
BETWEEN CHEYNE DENNIS MURPHY Plaintiff AND
ROBYN STEPHANIE MURPHY Defendant
Hearing: On the Papers Counsel:
J Wynyard for Plaintiff
T Grimwood for DefendantJudgment:
20 May 2013
JUDGMENT (NO. 2) OF TOOGOOD J
This judgment was delivered by me on 20 May 2013 at 3:00 pm
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
MURPHY v MURPHY [2013] NZHC 1151 [20 May 2013]
[1] In my principal judgment in this proceeding, dated 15 February 2013,1 I
proposed making orders which would:
(a) result in the defendant, Mrs Murphy, becoming the sole registered proprietor of the property which was in dispute; and
(b)require Mrs Murphy to pay her son, Cheyne, $13,500 by way of compensation under s 343(a) of the Property Law Act 2007 (“the Act”).
[2] I invited the parties to confer as to the form of the orders to be made, including as to the timing of the compensation payment, and to file a joint memorandum for consent orders or, failing agreement, separate memoranda setting out their views.
[3] I also reserved the question of costs, expressing the tentative view that each party had succeeded in part and that costs should lie where they fell. I reserved leave to either party to apply for costs by way of memorandum.
[4] The parties are unable to agree how the proposals set out in the principal judgment should be implemented, and they disagree about costs.
[5] The principal disagreement between the parties is as to how the Court should give effect to its judgment which requires the property to be transferred solely into the name of Mrs Murphy.
[6] At the time of the hearing, the property which was the subject of the dispute was occupied by Cheyne Murphy’s step-daughter, who was paying what I considered to be reasonable rent, but she moved out shortly after the hearing and the property has remained empty since then. Mrs Murphy says that the Court should order the plaintiff to restore the property to a reasonable rentable condition as determined by a
professional property manager, the cost of inspection to be carried by the plaintiff.
1 Murphy v Murphy [2013] NZHC 217.
[7] I have heard no evidence on this aspect of the case. The evidence at the trial indicated that the property was left vacant from time to time over the period from the date of purchase to the hearing of the proceeding, and there was nothing in the evidence which would persuade me that Cheyne was under some duty to maintain the property at any time. I do not consider there is any basis on which I could properly consider a claim not addressed at the hearing which, in reality, goes to the making of further substantive orders under s 343(g) of the Act. I decline to do so.
[8] The transfer of the property into Mrs Murphy’s name solely, and the payment
of compensation to Cheyne, should be treated as a simple conveyancing transaction.
Orders about implementation of the principal judgment
[9]
direct
I m ing th
(a)
ke the following orders, under s 343(g) of the Property Law Act, at:
any securities placed by the plaintiff on the title to the property at
1 Motoi Place, Ngongotaha, Rotorua (“the property”), shall be removed by the plaintiff by 4 June 2013; (b)
the parties shall discharge the mortgage of the property to the
ANZ/National Bank thereby releasing the parties from all obligations under the mortgage; (c)
in exchange for the transfer of his registered interest in the property to the defendant, the plaintiff shall receive the sum of $13,500 in cleared
funds, the exchange to occur simultaneously on a date to be agreed by
the parties or on 21 June 2013, whichever is the later (“the settlement
date”); and (d)
on the settlement date, the plaintiff shall transfer to the defendant any
keys, documents or other property relating to the property which are
in the plaintiff’s possession.
a
Costs
[10] It appears that, initially, the plaintiff was agreeable to there being no costs order in the case. He has altered his position in light of the defendant’s views and seeks costs on a Category 2B basis.
[11] The defendant submits that an award of costs against the plaintiff is appropriate, notwithstanding that the plaintiff received legal aid in support of his claim.
[12] The plaintiff being legally aided, an award of costs against him on the application of the defendant may be made only if “the court is satisfied that there are exceptional circumstances.”2 Section 45(3) of the Legal Services Act 2011 describes the types of conduct which the court may take into account in determining whether there are exceptional circumstances under s 45(2), including any conduct that causes the other party to incur unnecessary cost and any unreasonable refusal to negotiate a
settlement.
[13] Looking solely at the outcome of the case, I remain of the view that each of the parties has had a measure of success justifying a view that the parties should bear their own costs. I have been told by counsel for the defendant, however, that a Calderbank offer was made to the plaintiff on 11 August 2012, approximately a month prior to the commencement of the hearing. It is said that the offer was “for a sum significantly greater than the plaintiff’s final award” but no other details are given.
[14] The rejection by the plaintiff of a pre-trial settlement offer which was for an amount exceeding the amount awarded to the plaintiff following a trial is a matter which may tip the balance of considerations in favour of making an award of costs against the plaintiff. However, I express no concluded view at this stage.
[15] The defendant shall have until 11 June 2013 to apply for costs or any other order under s 45 of the Legal Services Act, the defendant’s memorandum to include
2 Legal Services Act 2011, s 45(2).
information concerning the making of any pre-trial settlement offers. The plaintiff shall have until 2 July 2013 to respond. The matter of costs shall then be dealt with on the papers, unless the Court orders otherwise.
.............................................
Toogood J