Murrell v Hamilton - [2014] NZHC 1459

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2012-412-000336 [2014] NZHC 1459

BETWEEN
JANE MAREE MURRELL

Plaintiff

AND

WILLIAM ELLIOT HAMILTON First Defendant

AND

GEOFFREY MIRKIN Second Defendant

AND

W E H TRUSTEE LTD Third Defendant

Hearing: On the papers

Appearances:

L A Andersen for the Plaintiff
D R Tobin for the First and Third Defendants
Second Defendant appears in Person

Judgment:

26 June 2014

JUDGMENT OF PANCKHURST J [RE COSTS]

Introduction

[1] Ms Murrell made a constructive trust claim after the failure of a de facto relationship. The claim failed at the last hurdle, as I held that the claim could not be sheeted home against the trustees of the family trust which owned the house property in question.

[2] Ms Murrell, however, succeeded in relation to a number of prior issues, including that:

MURRELL v HAMILTON [2014] NZHC 1459 [26 June 2014]

(a) she had made contributions to the property,

(b)she had a reasonable expectation of an interest in the property based on the actions of her partner, Mr Hamilton,

(c) the property had been sold at a profit,

(d) her interest was 15 per cent of the profit, and

(e) Mr Hamilton, in his personal capacity, should have recognised the

legitimacy of his former partner’s claim.

However, the conscience of the other trustee (the second defendant) was not similarly affected, not therefore the trust and for this reason the claim failed.

The costs sought

[3] Two parties seek costs, Mr Hamilton in both his personal capacity and as a trustee of the trust, and Mr Mirkin as a former trustee of the trust. Mr Mirkin, however, was not represented at the hearing, although he gave evidence as a witness. His claim is for the costs of his representation until July 2013, when Mr Parker withdrew from further involvement, having filed a memorandum to the Court signalling that intention and my having raised no objection.

[4] Mr Hamilton’s claim is advanced on three alternative bases. He seeks 2B costs totalling $35,024; or alternatively scale costs to 10 April 2013 and indemnity costs thereafter; or scale costs to the specified date and increased costs thereafter.

[5] A similar approach has been taken by Mr Mirkin, but his claim terminates at the point of his withdrawal from the proceeding in July 2013. Hence, he seeks scale costs to that date; or a combination of scale and indemnity costs; or a combination of scale and increased costs.

[6] The basis of the indemnity/increased costs claims is that on 10 April 2013 a letter was written on behalf of the defendants containing a detailed denial of liability,

but also an offer to pay $10,000 in final settlement. The offer remained open for 14 days. Failing acceptance of the offer, the defendants gave notice that the letter would be relied upon in seeking two sets of indemnity costs.

The unsuccessful party’s approach

[7] Ms Murrell challenges aspects of the scale costs calculations, whether any costs should be awarded to Mr Mirkin, 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 Murrell v Hamilton

Details

AGLC: Murrell v Hamilton [2014] NZHC 1459
Case: [2014] NZHC 1459
Decision Date: 26 June 2014

CaseChat Overview and Summary

The case of Murrell v Hamilton involved a claim by Ms Murrell for a constructive trust over property following the dissolution of her de facto relationship with Mr Hamilton. The case was heard in the High Court of New Zealand in Dunedin, and the parties involved were Jane Maree Murrell, William Elliot Hamilton, Geoffrey Mirkin, and W E H Trustee Ltd. Ms Murrell sought a constructive trust over the property, claiming contributions to the property, a reasonable expectation of an interest in the property, a profit from the sale of the property, a 15% share of the profit, and recognition of her claim by Mr Hamilton. The court found in Ms Murrell's favour on these issues but held that the claim could not be enforced against the trustees of the family trust, which owned the property.

The court considered several legal issues, including whether the second defendant, Mr Mirkin, should receive any costs, whether indemnity or increased costs were appropriate, and whether Ms Murrell's argument for reduced costs should be recognised. The court found that Mr Mirkin did not need to be separately represented and awarded him $1,500 for obtaining initial separate advice. The court also found that the defendants' claims for indemnity or increased costs were misconceived and rejected them. Finally, the court rejected Ms Murrell's argument for reduced costs, finding that the failure to keep records was not a failure in the course of the proceeding.

The court awarded 2B costs to Mr Hamilton in the sum of $28,500, plus $1,500 for the second defendant. The court also ordered that the defendants pay Ms Murrell's costs of $8,348.

Orders