Preston v Preston - [2021] NZHC 1536

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

[2021] NZHC 1536

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:

25 June 2021

JUDGMENT OF FITZGERALD J

This judgment was delivered by me on 25 June 2021 at 3.00pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date…………………………

Solicitors: Jesperson & Associates, Auckland
Buddle Bentley McClearly Ltd, Whakatane

To: I Hutcheson, Auckland

PRESTON v PRESTON [2021] NZHC 1536 [25 June 2021]

Introduction

[1] On 18 December 2019, I delivered a substantive judgment in three proceedings: the 030 proceedings, the 031 proceedings, and the 051 proceedings.1 I largely dismissed Mrs Preston’s claims against Mr Preston. I delivered a costs judgment on 13 May 2020.2 My costs judgment dealt with costs on a “proceeding by proceeding” basis.

[2] Mrs Preston subsequently appealed to the Court of Appeal. In a judgment delivered on 25 March 2021, the Court of Appeal dismissed Mrs Preston’s appeal in the 051 and 031 proceedings, but granted the appeal in the 030 proceedings. On costs, the Court concluded that:3
Given substantial dismissal of the appeal, and dismissal of the cross-appeal, there will be no order for costs. Any revision of costs in the High Court in light of the modest adjustment made by this judgment is a matter for that Court to consider.

[3] The parties have not been able to agree on an appropriate adjustment to costs of the proceedings in this Court. This judgment accordingly determines that issue.4

The 030 proceedings – a brief summary

[4] In the 030 proceedings, a family trust associated with Mrs Preston (HFT) alleged that a family trust associated with Mr Preston (GPFT) breached a contractual agreement to covey to HFT a property at Pauanui (the Property). The Property had been used by Mr and Mrs Preston as a holiday home during the course of their marriage. The obligation to convey arose from a pre-emptive buy-out right exercised by HFT. It was common ground that the value of the Property at the time notice of the exercise of the buy-out right was given (in November 2015) was $337,000. HFT sought specific performance of the conveyance of the Property at that price.

1      Preston v Preston [2019] NZHC 3389. CIV-2017-463-30, CIV-2017-463-31, and CIV-2017-463-
51.
2      Preston v Preston [2020] NZHC 957.
3      Preston v Preston [2020] NZCA 679 at [40].
4      Mrs Preston has applied for and been granted leave to appeal to the Supreme Court on whether the Court of Appeal was correct to dismiss her appeal in relation to her claim under s 182 of the Family Proceedings Act 1980 (part of the 051 proceedings). Given any costs adjustment in this Court relates only to the 030 proceedings, the Supreme Court’s judgment will not affect the costs outcome in those proceedings.

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 [2021] NZHC 1536
Case: [2021] NZHC 1536
Decision Date: 25 June 2021

CaseChat Overview and Summary

The High Court of New Zealand dealt with the case of Preston v Preston, which involved disputes between Katherine Elizabeth Preston and Grant Lee Preston. The proceedings were consolidated into three cases: the 030, 031, and 051 proceedings. The central issue in the 030 proceedings was whether a family trust associated with Grant (GPFT) breached a contractual agreement to convey a property at Pauanui to a family trust associated with Katherine (HFT). The High Court originally found no breach, but the Court of Appeal reversed this decision, finding that GPFT did breach the agreement and that HFT was entitled to a transfer of the property at a specific price. The Court of Appeal did not address the partnership accounts dispute between the parties.

In this judgment, the High Court addressed the issue of costs adjustment following the Court of Appeal's decision. HFT argued that they should receive full costs and a 50% increase in scale costs, as they were successful in the matters properly before the Court. GPFT argued that costs should lie where they fall, as both parties proceeded on the basis that the dispute over the partnership accounts was before the Court. The Court found that HFT was the successful party overall in the 030 proceedings and ordered a 20% uplift to the scale costs award in HFT's favour, bringing the total to $34,640.40. However, the Court also found that a reduction to the costs award was appropriate, reflecting that HFT was not successful on the issue of the accounts. The final costs award in HFT's favour was $27,712.32, with a deduction of the $1,400 hearing fee and an award of $174.99 in binding costs, bringing the total disbursements awarded to HFT to $1,574.99.

Orders