Parkins v Parkins

[2023] NZHC 452

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2021-442-0041

[2023] NZHC 452

UNDER

Section 60 of the Senior Courts Act 2016 and Rule 20.22 of the High Court Rules 2016

IN THE MATTER

of an intended appeal against a decision of the High Court in the Estate of the late Morris Ronald Parkins

BETWEEN

GRANT TREVOR PARKINS

Appellant

AND

STEVEN MORRIS PARKINS AND REECE DARREN PARKINS

Respondents

Hearing:	On the papers
Appearances:	R Armstrong for the Appellant G J Praat for the Respondents
Judgment:	9 March 2023

JUDGMENT OF COOKE J

(Costs)

[1]    The plaintiff in this case unsuccessfully brought proceedings in the District Court seeking a constructive trust.1 His appeal to the High Court was dismissed.2 I then considered and dismissed an application for leave to appeal to the Court of Appeal.3 The Court of Appeal has itself recently dismissed an application for leave.4

1      Parkins v Parkins [2021] NZDC 11821.

2      Parkins v Parkins [2022] NZHC 606.

3      Parkins v Parkins [2022] NZHC 2257.

4      Parkins v Parkins [2023] NZCA 41.

PARKINS v PARKINS [2023] NZHC 452 [9 March 2023]

[2]    I have already considered and ruled upon the question of costs of the application for leave to appeal to the Court of Appeal.5 But the respondents now apply for costs of the earlier appeal hearing in this Court. It is noted that a separate application for costs in the District Court will be made, albeit that it may be sensible for the implications of this judgment to be applied to costs in the District Court rather than the parties engaging in yet further litigation steps.

[3]    The respondents seek costs on a 2B basis. That is not disputed. But they seek an uplift of 30 per cent on such costs because the appellant failed to accept a settlement offer. That is resisted by the appellant. There is also an argument about costs of the costs application.

[4]    Under r 14.6(3)(b)(v) the Court may award increased costs if a party fails without reasonable justification to accept a settlement offer. The present case involves the defendants making an offer to settle when the plaintiff’s claim subsequently failed in any event. That is different from a situation when a defendant offers more than a plaintiff recovers — in that situation it can be seen that the ongoing cost of the litigation is a consequence of the plaintiff not accepting the offer. That does not arise here. This does not mean that increased costs may not be awarded, but the focus is more on the level of unreasonableness in the plaintiff’s continued pursuit of the litigation notwithstanding the offer.6

[5]    I accept that the plaintiff had a genuine dispute that he wished to bring to the Court through these proceedings. There was no dispute that he conducted work on the relevant property, and he was seeking a form of compensation for it. At one point one of his brothers suggested that he might be entitled to receive something. So the bringing of the proceedings by itself does not involve a lack of reasonable justification for proceedings warranting an uplift in costs. His justification for pursuing an appeal is less clear, but he still had a right of appeal and genuine issues to raise. I do not accept the defendants’ argument that matters change because of an earlier settlement offer. The settlement offer did not offer to give the plaintiff what he was seeking, and

5      Parkins v Parkins HC Wellington CIV-2021-442-0041, 5 October 2022.

6      See Mainzeal Property and Construction Ltd (in liq) v Yan and Others [2019] NZHC 1637 at [59]– [60]; Pangani Properties Ltd v Lloyd [2019] NZHC 863 at [25] and [43].

he was still genuinely seeking to bring his dispute to the Court. Moreover I accept Mr Armstrong’s point that the nature of the offer makes it difficult for the Court to assess how generous, or otherwise, it was to the plaintiff. Much depended on the value of property that was in issue.

[6]For these reasons I do not accept that a basis to increase the costs award arises.

[7]    I decline the applications for costs in relation to the costs application. That is a matter of discretion and an award is not warranted here.7

[8]Costs are awarded on the above basis, to be fixed by the Registrar if necessary.

Cooke J

Solicitors:

A R Armstrong Lawyer, Christchurch for the Appellant Knapps Lawyers, Nelson for the Respondent

7      See Gibson v Official Assignee of New Zealand [2015] NZHC 3200 at [14].