Picard v Martin
[2020] NZHC 2195
•27 August 2020
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 Chilcott, the Court held that the success or failure in any case is better assessed by a realistic appraisal of the end result rather than who initiated what step and the extent to which that step succeeded or failed.2 In this case, the appellant succeeded in her claim that a constructive trust ought to be imposed. That was the main issue in both the Family Court and the High Court. While she failed in respect of minor issues, so too did the first respondent, in the Family Court and in the cross-appeal.
[7] A brief synopsis of case issues prepared at the time of publication and distribution of the judgment reads as follows:
Ms Picard appeals against a Family Court decision as to division of relationship property and constructive trust issues. Mr Martin, her former partner, cross-appeals. The court held as follows:
(1)There was no reason to depart from the Family Court Judge’s finding that the sum of $50,000 had been loaned to the parties by Mr Martin’s father and the direction that the sum now be repaid to Mr Martin’s father. There was some contemporaneous documentation generally supportive of the fact of a loan.
(2)Most significantly, the Family Court Judge was in error in finding that the Paradise Valley Road property was not held on a constructive trust. This Court held that the property was part of relationship property. First, Ms Picard’s contributions were not manifestly in excess of the benefits she received. The benefit to Ms Picard and Mr Martin may be more properly seen not as rental of the house, which they themselves had paid for, but as ground rental forgone by the land owner. Secondly, Ms Picard’s expectation of an interest in the property was a reasonable one. Thirdly, Ms Picard was able to show that Mr Martin’s mother, as the legal owner of the property, had express or imputed knowledge of a constructive trust at the time of transfer of the property to her. Finally, as to the quantum of Ms Picard’s interest in the constructive trust, Ms Picard’s interest in the constructive trust could be equitably be assessed as a half share of the value of the improvements to the property. Ms Picard also sought occupation rent under s 18B of the Property (Relationships) Act, which was declined.
(3)Ms Picard appealed on three further minor issues, which the court largely dismissed.
(4)As to Mr Martin’s cross-appeal, again, these points were largely dismissed.
2 Packing In Ltd (in liq) v Chilcott (2003) 16 PRNZ 869 (CA).
[8] This, to my mind, is an accurate reflection of the focus and outcome of the appeal. By any realistic appraisal, the appellant was the only party to have succeeded.
The appellant is therefore entitled to costs. As I stated in my judgment:3
[113] … Ms Picard has now been successful in her appeal on the major issue of the existence of a constructive trust and the principle known as “costs here and [in the court] below” will apply.
[9] In the Family Court, the Judge made an order that costs were to lie where they fall without hearing from counsel or the parties. He stated:4
[92] Given that Mr Martin and Mrs Martin are self-represented, and Ms Picard has failed in most of her claims, costs are to lie where they fall.
Now that the appellant has succeeded in her major claim, costs in the Family Court need to be reassessed. Rather than remit the matter back to the Family Court to now determine costs, I am of the view that it is appropriate for me to undertake the reassessment given the amount involved and the detailed submissions made in this Court.
[10] The appellant initially received legal aid in the Family Court until it was withdrawn in 2018, well before the hearing in August and September 2019. She has also been legally aided in the High Court since 20 February 2020. A legally aided person may, however, still seek costs in the normal way. Even with legal aid, counsel for the appellant advises the Court that her actual costs are around $75,000, which does not include (yet to be invoiced) costs for post-hearing issues, which have taken up significant time.
[11] The principles applying to the determination of costs are set out in r 14.2 of the High Court Rules 2016. The primary principle is that the unsuccessful party should pay costs — that is, costs follow the event.5 The Rules aim to achieve predictability, consistency and expediency in the determination of costs.6 The Rules contain rates and steps designed to deliver to the successful party approximately two-thirds of the daily rate considered reasonable once the proceeding has been placed in its appropriate
3 Picard v Martin, above n 1.
4 Martin v Picard [2019] NZFC 5259 at [92].
5 High Court Rules 2016, r 14.2(a).
6 Rule 14.2(g).
category for complexity or significance,7 and then, in the appropriate band for time.8 It is agreed that the appropriate category and band for these proceedings is 2B — proceedings of average complexity in which a normal amount of time is considered reasonable for each step.
[12] I set out in the schedule to this judgment the steps taken, the time required and the amount recoverable. The total amount recoverable for the proceedings in the Family Court, District Court and High Court is approximately $51,000 before disbursements, or two-thirds of the appellant’s actual costs. This is what the High Court Rules were designed to deliver.
[13] There will accordingly be an order that the first respondent is to pay costs and disbursements of $58,179.55 to the appellant within three months of the date of this judgment. Of the total sum of $58,179.55, the second respondent is jointly and severally liable to pay the sum of $48,158.55 as she was not joined as a party to the proceeding until 2018. She is therefore not liable for costs of appearances before then or for the initial Telfer Young valuation report.
Woolford J
7 Rule 14.3.
8 Rule 14.5.
Family Court/District Court
Daily rate of $1,780.00 until 01/08/2019 Daily rate of $1,910.00 from 01/08/2019
Schedule 4 Numbers
Description
Days
Amount ($)
6 Notice of opposition 1.5 2,670.00 9.8 Filing memo for JC 0.25 445.00 9.9 Appearance at JC on 27/01/2017 (Munro DCJ) 0.3 534.00 9.8 Filing memo for JC 0.25 445.00 9.9 Appearance at JC on 23/6/2017 (Munro DCJ) 0.3 534.00 9.8 Filing memo for JC 0.25 445.00 9.9 Appearance at JC on 14/9/2017 (Munro DCJ) 0.3 534.00 9.8 Filing memo for JC 0.25 445.00 9.9 Appearance at JC on 28/3/2018 (Wills DCJ) 0.3 534.00 1 Statement of claim 1.5 2,670.00 9.8 Memo of consent to transfer 0.25 445.00 9.8 Filing memo for JC 0.25 445.00 9.9 Appearance at JC on 17/9/2018 (Druce DCJ) 0.3 534.00 9.8 Filing memo for JC 0.25 445.00 9.9 Appearance at JC on 19/11/2018 (Coyle DCJ) 0.3 534.00 9.8 Filing memo for JC 0.25 445.00 9.9 Appearance at JC on 16/4/2019 (Wills DCJ) 0.3 534.00 17.1 Preparation for hearing 6 11,460.00 17.2 Hearing 3 5,730.00 $29,828.00
High Court
All at daily rate of $2,390.00
Schedule 3 Numbers
Description
Days
Amount ($)
22 Interlocutory application for stay dated 22/10/2019 0.6 1,434.00 52 Commencement of appeal 1 2,390.00 11 Filing memo for CMC 0.4 956.00 13 Appearance at CMC on 13/11/2019 (Muir J) 0.3 717.00 11 Filing memo for CMC 0.4 956.00 13 Appearance at CMC on 25/11/2019 (Muir J) 0.3 717.00 11 Filing memo for CMC 0.4 956.00 13 Appearance at CMC on 27/2/2020 (Gwyn J) 0.3 717.00 55 Preparation of case on appeal 1 2,390.00 56 Preparation of written submissions 3 7,170.00 57 Appearance at hearing on 13/5/2020 (Woolford J) 1 2,390.00 29 Sealing order 0.2 478.00 $21,271.00
Disbursements
Amount ($)
Telfer Young valuation report (25 May 2018) 2,990.00 Telfer Young affidavit and appearance 3,018.75 Super Dooper — authorities and additional case on appeal 873.94 Copies etcetera (binding) 197.86 $7,080.55
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