Pender v Pender

[2021] NZHC 1432

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-000264

[2021] NZHC 1432

BETWEEN

DESMOND ANTHONY PENDER, KATHLEEN MARIE PENDER and RICHARD JOHN SISSONS

Plaintiffs

AND

VINCENT GRAHAM PENDER and COLLEEN PENDER

First Defendants

AND

SIMON LEONARD PRICE and MAREE CATHERINE KHOURI

Second Defendants

Hearing:

On the papers

Counsel:

G M Brodie for the Plaintiffs

J E Bayley for the First Defendants P R Allan for the Second Defendants

Judgment:

16 June 2021

JUDGMENT OF NATION J AS TO COSTS

[1]I refer to my judgment of 23 February 2021.1

[2]        On 14 June 2021, counsel for the plaintiffs (Tony’s trustees), by memorandum, advised that the tender process, as directed in the Court’s judgment of 23 February 2021, had been successful. An unconditional bid was accepted by all parties and the sale was settled on 27 May 2021.

1      Pender v Pender [2021] NZHC 256.

PENDER v PENDER [2021] NZHC 1432 [16 June 2021]

[3]        Counsel advised it was not anticipated further directions from the Court would be required.

[4]        Tony’s trustees sought an award of costs on a 2B basis as to their application to vary the terms of the consent order. They submit they were successful with their application. They acknowledge that, on 16 November 2020, they filed an application and affidavits seeking a variation of the earlier sale orders to allow sale by auction. Faced with opposition from the first defendants (Vincent’s trustees) on jurisdictional grounds, Tony’s trustees amended their application to seek directions that the sale proceed by tender in accordance with the 7 December 2019 consent order which they had earlier sought to vary.

[5]        Tony’s trustees say they were successful after the hearing on 3 February 2021 in that the Court’s orders were largely consistent with their amended application.

[6]        Vincent’s trustees, through their counsel, contend Tony’s trustees should not be considered the successful party. Vincent’s trustees say they opposed the application as originally framed, reluctantly agreeing that the sale should proceed in accordance with the earlier consent orders. They submit Tony’s trustees caused all parties unnecessary expense through filing the initial application seeking the Court’s approval to the sale proceeding by auction. They say they were also put to expense through Tony’s trustees not simply withdrawing the application. They were thus put to the expense of having counsel file submissions as to the application before the Court. They submit the work required of their counsel at their cost was largely of no utility because the Court directed that the sale should proceed largely in accordance with the original consent sale orders.

[7]        I do not consider the application by Tony’s trustees was filed unnecessarily. The advice from the real estate agent was that there could well be a need for further directions from the Court because the reserve price previously agreed to by the parties might not be achieved, and the agreed sale by tender process might not be the best means of achieving what all parties wanted. There also appears to have been such a breakdown in the relationship between the parties that there was a high likelihood that, if any difficulties did arise, it would not be possible to resolve them by agreement.

[8]        Although, faced with Vincent’s trustees’ objection, Tony’s trustees decided to allow the sale to proceed by tender and asked for the hearing of their application to be adjourned, I do not consider they acted unreasonably in not withdrawing their earlier application. It was a case where there was such dispute between the parties that there was significant potential for issues to arise in the sale process which the Court would have to deal with. That became more apparent when counsel for Vincent’s trustees filed submissions contending that the Court did not have jurisdiction to vary the terms of the consent orders in the manner sought with the interlocutory application and that the logical course was for the consent orders to be set aside in their entirety and for the substantive proceedings to be set down for trial.

[9]        Tony’s trustees were successful in the sense that the orders made by the Court after the hearing on 3 February 2021 were largely consistent with the way Tony’s trustees on 1 December 2020 had advised how they wished to proceed. They had however decided not to seek directions as set out in their original application. On the other hand, the Court did not accept the submissions that had been advanced for Vincent’s trustees at the hearing.

[10]      It was at the Court’s insistence that there was no adjournment of the hearing scheduled for 3 February 2021. With that hearing, the Court ensured it would be able to deal with any issues that might require determination given the real likelihood that the parties would not be able to resolve differences between themselves.

[11]All parties must have benefited from the way a sale has been achieved.

[12]      Against that background, I consider this is a case where costs should lie where they fall, both as to the 16 November 2020 application and the costs application. The costs application by the plaintiffs is declined.

[13]      In my judgment of 23 February 2021, I directed there was to be a change in the intituling to reflect a change in the trustees. The memoranda over costs did not recognise that change but the change is reflected in the intituling on this judgment.

Solicitors:

G M Brodie, Barrister, Christchurch Malley & Co., Christchurch

Rhodes & Co., Christchurch.