Picard v Martin - [2020] NZHC 2195

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B,

11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

https://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2019-463-000106

[2020] NZHC 2195

BETWEEN
CHYNELLE TUI FRANCIS PICARD

Appellant

AND

ALEC ROBERT MARTIN

First Respondent

ANNABELLA TANYA MARTIN

Second Respondent

Hearing: On the papers

Counsel:

J Hosking for Appellant A R Martin in person

K Patterson for Second Respondent

Judgment:

27 August 2020

JUDGMENT OF WOOLFORD J

[As to costs]

This judgment was delivered by me on Thursday, 27 August 2020 at 2:15 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors: The Law Shop, Rotorua (S Northey) for the Appellant Counsel: J Hosking for the Appellant
K J Patterson, Tauranga, for the Second Respondent

Copy to: A R Martin (First Respondent)

PICARD v MARTIN & ANOR [2020] NZHC 2195 [27 August 2020]

[1] On 3 June 2020, I delivered judgment in this case.1 I allowed an appeal by Ms Picard (the appellant) against a decision of the Family Court that she and Mr Martin (the first respondent) did not have an equitable interest in a house owned by his mother, Mrs Martin (the second respondent), by virtue of a constructive trust. The parties have subsequently been unable to agree costs.

Parties’ position

[2] The appellant seeks costs of $73,001.32 against the first respondent in respect of both the initial hearing in the Family Court and the appeal in the High Court. The second respondent was only joined to the proceeding in 2018 and so the appellant submits that she is jointly liable with the first respondent for the lesser sum of
$61,698.71.

[3] The first respondent (who is self-represented) submits that costs should lie would they fall on the basis that, although the appellant was successful on the matter of the constructive trust, he was, in turn, successful on multiple counts. He also notes that the appellant has had her legal aid written off.

[4] The second respondent also submits that costs should lie where they fall. However, in the event that the Court was not minded to direct that costs should lie where they fall, she submits that a costs order should be made in favour of the respondents because they had significantly more success in terms of the issues raised on appeal than the appellant.

[5] The second respondent does, however, accept that if any costs award is made against the appellant, it should be reduced to reflect the partial success that she had on appeal. Similarly, if the Court was to make a costs award against the respondents, she submits that consideration of the actual costs incurred by the appellant should be taken into account.

1 Picard v Martin [2020] NZHC 1206.

Discussion

[6] In Packing In Ltd (in liq) v…

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 Picard v Martin

Details

AGLC: Picard v Martin [2020] NZHC 2195
Case: [2020] NZHC 2195
Decision Date: 27 August 2020

CaseChat Overview and Summary

Picard v Martin involved Chynelle Francis Picard (the appellant) appealing a Family Court decision that she and Alec Robert Martin (the first respondent) did not have an equitable interest in a house owned by his mother, Annabella Tanya Martin (the second respondent). Picard argued that the Family Court erred in finding that the property was not held on a constructive trust. The appeal centred on whether the property was part of relationship property and whether a constructive trust should be imposed. The first respondent cross-appealed on various grounds, but these were largely dismissed. The High Court found in favour of Picard on the primary issue of the existence of a constructive trust.

The court examined the legal principles governing costs in relation to the outcome of the case. It held that the success or failure of a party in any case is better assessed by a realistic appraisal of the end result rather than by focusing on who initiated what step. The court found that Picard was the only party to have succeeded in the main issue of the existence of a constructive trust. Therefore, the principle of "costs follow the event" applied, meaning that the unsuccessful parties should bear the costs. The court reassessed the costs in the Family Court and determined that the first respondent should pay approximately two-thirds of the appellant's actual costs. The second respondent was jointly and severally liable with the first respondent for a portion of the costs, as she was not joined to the proceedings until 2018. The court ordered the first respondent to pay costs and disbursements of $58,179.55 to the appellant within three months of the judgment date.

Orders