Regan v Brougham - [2021] NZCA 154

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA666/2017
[2021] NZCA 154

BETWEEN	CHRISTINE ANNA ELIZABETH REGAN AND MARK JEFFEREY TUFFIN AS TRUSTEES OF THE WINCHESTER TRUST Appellants
AND	BRYCE BROUGHAM First Respondent RACHAEL CHRISTINA DEY Second Respondent

Court:	French, Collins and Goddard JJ
Counsel:	F A King for Appellants J K Mahuta-Coyle for First Respondent
Judgment: (On the papers)	3 May 2021 at 9 am

JUDGMENT OF THE COURT AS TO COSTS

AThe costs in this Court are to be calculated on the basis of a category two daily recovery rate.
BCosts in the High Court are to be calculated in accordance with the daily recoverable rate that applied prior to 1 August 2019.
CCosts in the District Court on both the claim and the counterclaim are to lie where they fall.
DLeave is reserved to the parties to come back to the Court in the event of there being any further issues arising out of the calculation of costs in accordance with this judgment.

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REASONS OF THE COURT

(Given by French J)

Introduction

This proceeding has had a long and chequered history during the course of which the trustees of the Winchester Trust have sought with varying degrees of success to enforce a guarantee of $50,000 against Mr Brougham.
It began in the District Court where the District Court dismissed the trustees’ claim and also dismissed a counterclaim by Mr Brougham.[1] The trustees appealed tothe High Court and Mr Brougham cross-appealed but both the appeal and the cross‑appeal were dismissed.[2] Mr Brougham did not pursue his counterclaim argument any further but the trustees obtained leave to bring a second appeal in this Court.[3] The trustees succeeded in this Court.[4] And in a separate costs judgment, this Court awarded them reasonable indemnity costs in accordance (as this Court saw it) with the terms of the guarantee.[5] However, subsequently, the liability decision of this Court was in turn reversed by the Supreme Court in a third appeal brought by Mr Brougham.[6]
[1]Regan v Brougham [2016] NZDC 1855.
[2]Regan v Brougham [2017] NZHC 1091.
[3]Regan v Brougham [2018] NZCA 157.
[4]Regan v Brougham [2019] NZCA 401, [2020] 2 NZLR 299.
[5]Regan v Brougham [2020] NZCA 173 [CA first costs judgment].
[6]Brougham v Regan [2020] NZSC 118.
The Supreme Court quashed all awards of costs and disbursements that had been made in favour of the trustees in the Courts below. It further directed that all awards of costs and disbursements (other of course than the costs awarded in the Supreme Court itself) were to be re-assessed by this Court in light of the Supreme Court decision.[7]
[7]At [70].
The parties have reached agreement on most aspects of costs but there remain a number of issues which require judicial determination. We record that there does not appear to be any contested issue regarding disbursements and refund of security for costs.
We now address each of…

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 Regan v Brougham

Details

AGLC: Regan v Brougham [2021] NZCA 154
Case: [2021] NZCA 154
Decision Date: 3 May 2021 at 9 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand delivered a decision on the issue of costs between Christine Regan, Mark Tuffin as trustees of the Winchester Trust, and Bryce Brougham. The trustees sought to enforce a guarantee of $50,000 against Mr Brougham, which had been previously awarded to them by this Court but subsequently reversed by the Supreme Court. The trustees and Mr Brougham reached agreement on most aspects of costs, but there were unresolved issues regarding the calculation of costs in the Court of Appeal, the High Court, and the District Court. This Court was required to determine whether the appeal was complex or standard, which would affect the daily recovery rate, and whether Mr Brougham was entitled to increased costs in the District Court based on his settlement offers. The Court found the appeal was not complex, and the daily recovery rate should be category two for the Court of Appeal and category one for the High Court, as the rates increased on 1 August 2019 and were not retrospective. The Court also found that the most just solution was for costs in the District Court to lie where they fell, as the trustees' position on the enforceability of the guarantee ultimately succeeded in this Court.

The Court of Appeal directed that the costs in the Court of Appeal are to be calculated on the basis of a category two daily recovery rate. Costs in the High Court are to be calculated in accordance with the daily recoverable rate that applied prior to 1 August 2019. Costs in the District Court on both the claim and the counterclaim are to lie where they fall. Leave is reserved to the parties to come back to the Court in the event of there being any further issues arising out of the calculation of costs in accordance with this judgment. Finally, in all the circumstances, no award of costs is made in relation to this costs dispute.

Orders