Nothling v Clayton - [2022] NZHC 1943

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2022-470-35

[2022] NZHC 1943

BETWEEN
LYNN ALTHEA NOTHLING

First Applicant

ZAK EDWARD NOTHLING
Second Applicant

AND

MARK ARNOLD CLAYTON

Respondent

On the papers: 8 August 2022

Appearances:

Geoffrey C Jenkin for the Applicants David Hayes for the Respondent

Judgment:

9 August 2022

COSTS JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

This judgment was delivered by me on 9 August 2022 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules

………………………….
Registrar/Deputy Registrar

Solicitors:
Bruce Dell Law, Panmure, Auckland, for the Applicants
Michael Hunwick Lawyer, Te Rapa, Hamilton, for the Respondent
Counsel:
Geoffrey C Jenkin, Princes Chambers, Auckland, for the Applicants
New Zealand Commercial Law Corp Limited (David Hayes), Hamilton, for the Respondent

NOTHLING v CLAYTON [2022] NZHC 1943 [9 August 2022]

Introduction

[1] Ms Lynn Nothling and her son Mr Zak Nothling seek costs against Mr Mark Clayton.

Background

[2] The Nothlings, in their capacity as trustees of the Clayton Nothling Trust (the Trust), filed an originating application dated 9 May 2022 seeking an order under s 142 of the Land Transfer Act 2017 for removal of a notice of claim that Mr Clayton had lodged against the property at 2 Gwendoline Street, Rotorua. The originating application was accompanied by a without notice application for directions.

[3] On 10 May 2022, Brewer J dealt with the without notice application on the papers. His Honour stated:1

The applicants allege that Mr Clayton’s notice of claim has been lodged vexatiously and is an abuse of the process of the Court. I have to say that having considered the previous caveat litigation pursued by Mr Clayton there is prima facie support for that allegation. For example, in the litigation before Moore J, Mr Clayton claimed to be a beneficiary of the trust upon which the applicants hold the property and he intended the final beneficiaries of the trust to be his grandchildren. That is incompatible with a claim of interest in the property under the Property (Relationships) Act 1976.

[4] The matter again came before Brewer J on 18 May 2022. His Honour’s minute of that date recorded the view that the case had the hallmarks of an abuse of process and that it would be unjust to allow a situation to continue whereby, among other things, the Trust could not settle an agreement for sale and purchase of the Gwendoline Street property. His Honour indicated he was prepared to order immediate removal of the notice of claim if the Nothlings provided a written undertaking that would preserve Mr Clayton’s ability to bring a claim against a separate property at 17A Grey Street,

1 Nothling v Clayton HC Auckland CIV-2022-470-35, 10 May 2022 (Minute of Brewer J) at [7].

Glenholme, Rotorua, that the Trust was obligated to acquire as trust property under an agreement for sale and purchase.2

[5] On 23 May 2022, having received the Nothlings’ undertakings, Brewer J discharged…

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 1943
Decision Date: 9 August 2022

CaseChat Overview and Summary

The case of Nothling v Clayton involved a legal dispute between Lynn Althea Nothling, Zak Edward Nothling, and Mark Arnold Clayton. The Nothlings, as trustees of the Clayton Nothling Trust, sought the removal of a notice of claim that Clayton had lodged against property located at 2 Gwendoline Street, Rotorua. The legal issues in the case centered on whether Clayton's notice of claim was vexatious and an abuse of process, and if so, whether the Nothlings were entitled to costs. The Nothlings argued that Clayton's claim was hopeless and vexatious, causing significant disruption to their property dealings. Clayton, on the other hand, argued that costs should not be awarded as the Nothlings' conduct was unreasonable, and the matter could have been settled.

The Court found that Clayton's notice of claim was indeed a hopeless case, as it was incompatible with the property being owned by the Trust. The Court also found that Clayton's actions were carried out with a view to causing damage and discomfort to the Trust in relation to its property transactions. Based on these findings, the Court awarded indemnity costs to the Nothlings in the amount of $34,742.25, as sought. Additionally, Clayton was awarded costs on a 2B basis in respect of the hearing on 2 June 2022, quantified at $2,390.00.

Orders