Neal v Neal - [2022] NZHC 2625

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-431

[2022] NZHC 2625

UNDER Section 42 of the Property (Relationships) Act 1965

IN THE MATTER

of an application that Notice of Claim not lapse

BETWEEN

VANESSA ROSEMARY NEAL

Applicant

AND

COLIN ASHLEY NEAL

Respondent

Hearing: On the papers

Counsel:

J McCartney KC for the Applicant

V A Crawshaw KC for the Respondent

Judgment:

12 October 2022

JUDGMENT OF GAULT J

(Costs)

This judgment was delivered by me on 12 October 2022 at 4:00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:
Ms J McCartney KC, Barrister, Auckland
Mr DJG Cox (applicant’s instructing solicitor), Rennie Cox Lawyers, Auckland Ms V A Crawshaw KC, Barrister, Auckland
Ms A Bradley (respondent’s instructing solicitor), Duncan Cotterill, Christchurch

NEAL v NEAL [2022] NZHC 2625 [12 October 2022]

[1] This proceeding involved an originating application for an order that Ms Neal’s notice of claim not lapse. I made that order by consent, but the parties could not agree on costs. I considered that costs should be determined on the papers and made timetabling directions for affidavits and submissions.1

[2] Ms Neal seeks indemnity or increased costs, and costs on costs. In terms of indemnity costs, she seeks solicitor/client costs to 20 April 2022 of $15,931.77 plus
$6,256 subsequently incurred in respect of affidavits and submissions seeking costs.

[3]Mr Neal accepts that Ms Neal is entitled to costs on a 2B basis calculated at

$6,884 but opposes indemnity or increased costs, and costs on costs.

Background

[4] The parties were in a relationship from about 1998, marrying in 2005. They separated in March 2021.

[5] On 20 May 2021, Ms Neal registered a notice of claim over a property in Halsey Street, Auckland (the property) which Mr Neal had purchased on 13 May 2021.

[6] In July 2021, Ms Neal commenced proceedings in this Court claiming a constructive trust.

[7] In August 2021, Ms Neal commenced Family Court relationship property proceedings.

[8] On 15 March 2022, Mr Neal applied to Land Information New Zealand to lapse Ms Neal’s notice of claim. On 21 March 2022, Ms Neal’s solicitors received notice of Mr Neal’s application to lapse the notice of claim.

[9] On 1 April 2022, Ms Neal filed the originating application for an order that her notice of claim not lapse, together with an affidavit in support.

1 Neal v Neal HC Auckland CIV-2022-404-431, minute dated 26 April 2022.

[10] On 7 April 2022, Mr Neal filed a notice of opposition indicating he did not oppose an order that the notice of claim not lapse but did oppose costs. He also filed an affidavit.

[11] On 22 April 2022, Mr Neal’s counsel filed a memorandum indicating he was willing to pay 2B costs of $6,884.

Scale costs

[12] Ms Neal submits it is apparent that category 2C applies as the steps taken in the proceeding exceeded the time provided…

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.

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Details

Case: [2022] NZHC 2625
Decision Date: 12 October 2022

CaseChat Overview and Summary

The High Court of New Zealand was called upon to decide an originating application filed by Vanessa Rosemary Neal against Colin Ashley Neal. The applicant sought an order that her notice of claim over a property in Halsey Street, Auckland, should not lapse. This followed the respondent's application to Land Information New Zealand to lapse the notice of claim. The court was also required to decide whether the applicant was entitled to indemnity or increased costs, and costs on costs.

The legal issues centred on whether the respondent's actions in lodging the notice to lapse and opposing costs were vexatious, frivolous, improper, or unnecessary. The court had to consider the principles governing indemnity and increased costs under the High Court Rules 2016, and whether the misconduct alleged by the applicant was flagrant and incontrovertible. Additionally, the court assessed whether costs on costs were appropriate for the filing of subsequent affidavits and submissions on costs.

The court concluded that the respondent's actions, while possibly unreasonable, were not flagrant and incontrovertible misconduct. It held that the misconduct must be both obvious and incontrovertible to warrant an award of indemnity or increased costs. The court found that the evidence provided by the parties was contested and not suitable for making a misconduct determination solely for the purpose of costs. Consequently, the court declined to award indemnity or increased costs. It also declined to award costs on costs, stating that the court is generally reluctant to do so and that such costs should generally be awarded by allowing scale costs for the filing of a costs memorandum.

The final orders of the court mandated that the respondent pay the applicant 2B costs and disbursements of $8,313.

Orders