Ngui v Ngui - [2020] NZHC 1378

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2018-404-001970

[2020] NZHC 1378

UNDER The Property Law Act 2007

BETWEEN

MERLISA SHIOW CHING NGUI

First Plaintiff

AND

MERLYNDA SHIOW MIN NGUI

Second Plaintiff

AND

MERLYNA SHIOW SZE NGUI

Third Plaintiff

AND

JOSEPH SHIOW SEN NGUI

Defendant

Hearing: On the papers

Counsel:

A Gilchrist for the Plaintiffs J A Wickes for the Defendant

Judgment:

18 June 2020

JUDGMENT OF VAN BOHEMEN J

[as to costs]

This judgment was delivered by me on 18 June 2020 at 1.00pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:
Vlatkovich & McGowan, Auckland Southern Cross Chambers, Auckland Loo & Koo, Auckland

NGUI v NGUI [as to costs] [2020] NZHC 1378 [18 June 2020]

Introduction

[1] On 13 March 2020 I gave judgment1 in favour of the plaintiffs, Merlisa, Merlynda and Merlyna Ngui, in their dispute with the defendant, their brother Joseph Ngui, over the former family home in Herd Road, Hillsborough, Auckland, which their mother had left to all four children but which the defendant and his family had continued to occupy. As sought by the plaintiffs, I ordered that the property be sold and the proceeds shared equally among the four siblings unless the defendant purchased the plaintiffs’ 25 per cent shares on terms set out in my orders. I also ordered that, at settlement, the defendant pay each plaintiff $37,994.64 for rental from May 2016 to 17 February 2020, less $16,744.02 for each plaintiff’s share of the costs of repair and maintenance, insurance and rates and an additional amount to be quantified upon production of receipts for payment of rates, that had been paid by the defendant. I also made orders regarding the defendant’s responsibility for rent from 18 February 2020.

[2] As the plaintiffs were the successful parties, I said they were entitled to costs on a 2B basis and that if the parties could not agree on costs they could file submissions with the Court.2

[3] Mr Gilchrist, counsel for the plaintiffs, filed memoranda on 9 and 23 March 2020. Ms Wickes, counsel for the defendant, filed a memorandum on 23 March 2020. For reasons relating to the Covid-19 emergency, the memoranda were not brought to my attention until 25 May 2020, on which date I had just commenced as period of medical leave. I apologise to counsel and the parties for the delay in responding to counsels’ memoranda.

[4] The memoranda record that the parties have agreed on the calculation of costs for a hearing of 1.5 days on a 2B basis, being $32,275.00, plus disbursements of
$10,649.00, as set out in the schedule to Mr Gilchrist’s memorandum of 23 March 2020.

1 Ngui v Ngui [2020] NZHC 160.
2 At [97].

[5] However, Mr Gilchrist submits that this is appropriate case for the Court to order increased or indemnity costs against the defendant and submits that the plaintiffs should be awarded costs of…

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 Ngui v Ngui

Details

AGLC: Ngui v Ngui [2020] NZHC 1378
Case: [2020] NZHC 1378
Decision Date: 18 June 2020

CaseChat Overview and Summary

In Ngui v Ngui, the High Court of New Zealand was asked to determine whether the defendant should be ordered to pay increased or indemnity costs to the plaintiffs in a family property dispute. The plaintiffs, three sisters, sought a declaration that they were entitled to an equal share in their former family home which had been left to them by their mother. The defendant, their brother, had continued to occupy the property after their mother's death and refused to pay any rent or contribute to the costs of the property. The plaintiffs were successful in their claim and were awarded costs on a 2B basis. The defendant opposed the plaintiffs' application for increased or indemnity costs, arguing that costs had already been awarded and that he had made offers to settle the dispute. The court found that the defendant had contributed unnecessarily to the expense of the proceeding by failing to accept the plaintiffs' offers to settle the dispute, which were more beneficial to the defendant than the judgment obtained by the plaintiffs against him. The court also found that the defendant's position of insisting on retaining possession of the property while refusing to pay any capital or income to his sisters and wishing to delay matters until a time that suited him was always untenable and amounted to pursuing an unnecessary step or argument, one that lacked merit, or failing to accept a legal argument. The court granted the plaintiffs' application for increased costs and ordered that the defendant pay the plaintiffs costs of $50,000.00 plus agreed disbursements of $10,649.00. The court also directed that a half day of hearing fees should be refunded to reflect the actual time spent at the hearing and the basis on which disbursements were agreed.

Orders