Preston v Preston - [2022] NZHC 1850

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2017-463-30 CIV-2017-463-31

CIV-2017-463-51 [2022] NZHC 1850

BETWEEN KATHERINE ELIZABETH PRESTON AND OTHERS
Plaintiffs

AND

GRANT LEE PRESTON AND OTHERS

Defendants

Hearing: On the papers

Appearances:

IM Hutcheson for the Plaintiffs JM McCleary for the Defendants

Judgment:

29 July 2022

JUDGMENT NO. 4 OF FITZGERALD J

[As to adjustment to costs following Supreme Court appeal]

This judgment was delivered by me on 29 July 2022 at 4.00pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Jespersen & Associates, Auckland
Buddle Bentley McCleary Ltd, Whakatane

To: I Hutcheson, Auckland

PRESTON v PRESTON [2022] NZHC 1850 [29 July 2022]

Introduction

[1] I have delivered three prior judgments in these proceedings. In the first, delivered on 18 December 2019, I largely dismissed Mrs Preston’s claims against Mr Preston.1 In the second judgment, delivered on 13 May 2020, I determined costs (on a “proceeding by proceeding” basis).2 Mrs Preston subsequently appealed to the Court of Appeal, and her appeal was largely dismissed, though the Court allowed her appeal in relation to one of the three proceedings which was the subject of the substantive judgment, referred to as the “030 proceeding”.3 As a result, on 25 June 2021, I issued a costs judgement adjusting costs in relation to the 030 proceeding in light of the Court of Appeal’s judgment.4

[2] Following leave being granted, Mrs Preston appealed to the Supreme Court. The appeal was limited to the Court of Appeal’s dismissal of part of Mrs Preston’s appeal to that Court in what is referred to as the “051 proceeding”, namely her claim under s 182 of the Family Proceedings Act 1980 (the FPA). Mrs Preston did not appeal any other aspects of the Court of Appeal’s decision (and Mr Preston did not cross- appeal). In a judgment delivered on 9 November 2021, the Supreme Court allowed Mrs Preston’s appeal, and made orders to the effect that she was to be paid a sum reflecting 15 percent of the equity in Mr Preston’s family trust.5

[3] This judgment accordingly considers the adjustment of costs in the High Court in respect of the 051 proceeding, in light of the Supreme Court’s decision.

The 051 proceeding – a brief summary

[4] The 051 proceeding comprised a collection of claims between the parties under relationship property legislation, and in particular the Property (Relationships) Act 1976 (the PRA) and the FPA. Mrs Preston advanced claims pursuant to s 15 of the

1      Preston v Preston [2019] NZHC 3389 [the substantive judgment]. The claims between the parties spanned three proceedings heard together, which the Court and the parties have referred to as the “030 proceeding”, the “031 proceeding”, and the “051 proceeding”.
2      Preston v Preston [2020] NZHC 957 [the costs judgment].
3      Preston v Preston [2020] NZCA 679.
4      Preston v Preston [2021] NZHC 1536.
5      Preston v Preston [2021] NZSC 154 [the Supreme Court judgment].

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 Preston v Preston

Details

AGLC: Preston v Preston [2022] NZHC 1850
Case: [2022] NZHC 1850
Decision Date: 29 July 2022

CaseChat Overview and Summary

The case of Preston v Preston involved a dispute between Katherine Elizabeth Preston and Grant Lee Preston, heard in the High Court of New Zealand Tauranga Registry. The matter involved several proceedings, including the 030, 031, and 051 proceedings. The claims in the 051 proceeding were primarily under the Property (Relationships) Act 1976 and the Family Proceedings Act 1980, focusing on issues such as economic disparity, the division of chattels, and claims for relief under section 182 of the FPA. The primary legal issues in this case revolved around the determination of the successful party overall in the 051 proceeding, the appropriate apportionment of costs between the parties, and the allocation of disbursements, particularly expert witness fees.

The Court concluded that despite Mrs Preston not succeeding on all her claims in the 051 proceeding, she was the successful party overall. This was because her success on one significant claim, under section 182 of the FPA, resulted in a substantial award of approximately $243,000. The Court rejected the argument that the proceeding should be sliced into individual issues to determine the successful party, as it was inconsistent with established authorities. Instead, the Court found that Mrs Preston's overall success warranted a reduction of her costs by 50 percent to reflect her failures on other claims, which likely increased Mr Preston's costs. The Court also ruled that Mrs Preston was entitled to her disbursements, including expert witness fees, despite their primary relevance to unsuccessful claims, as they were reasonably necessary for the overall proceedings.

The final orders of the Court were to quash the earlier costs orders in relation to the 051 proceeding. There was a new costs award to Mrs Preston in the 051 proceeding, totalling $19,331 in scale costs plus disbursements of $25,847.07. The Court also awarded Mrs Preston costs of dealing with costs, amounting to $446 for one memorandum on a scale 2B basis. The Court did not award costs for Mrs Preston's reply memorandum, as it was neither lengthy nor timetabled.

Orders