Robertson v Gilbert

[2013] NZHC 1589

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2001-404-3141 [2013] NZHC 1589

BETWEEN  ANNE IVRES ROBERTSON Plaintiff

ANDEVELYN KAYE GILBERT First Defendant

HERC ROSS COLEMAN Second Defendant

And Others

Hearing:                   27 June 2013

Appearances:           J. Cox - Counsel for First Defendant

H.R. Coleman - the Second Defendant in person

Judgment:                2 July 2013

JUDGMENT OF JUSTICE D.I. GENDALL

This judgment was delivered by me on 2 July 2013 at 3.30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ..................................................................

Solicitors:           Blomkamp Cox, Solicitors, Takapuna

AI ROBERTSON v EK GILBERT [2013] NZHC 1589 [2 July 2013]

Introduction

[1]      The second defendant (Mr Coleman) has applied under s 26P(1) Judicature Act 1908 to review a decision of His Honour Associate Judge Bell contained in a Minute issued by Judge Bell dated 6 March 2013.

[2]      The first defendant (Ms Gilbert) supports the application for review.

[3]      There is no formal opposition from the plaintiff or indeed from any other party to the present application.

Background Facts

[4]      This matter originally involved proceedings relating to the partition of land on Kawau Island brought by the plaintiff against six defendants.

[5]      As a consequence of partition orders which this Court made, on 2 November

2005  His  Honour  Justice  Priestley  determined  that  a  monetary  adjustment  of

$23,100.00 was to be payable by the plaintiff to the defendants in consideration of her receiving a disproportionately large share of the land in question.

[6]      On 20 July 2007 His Honour Justice Priestley confirmed this monetary adjustment  payable  to  the  defendants  but  His  Honour  also  ordered  that  the defendants in this proceeding should pay costs on the partition application to the plaintiff of $36,250.00.

[7]      As  I understand  the  position,  it  was  thought  by  the  defendants  that  the respective amounts would be set off against each other with a net amount owed by them to the plaintiff therefore of the difference being $13,150.00.

[8]      Payment  of  this  $13,150.00  was  then  tendered  to  the  plaintiff  twice  in

October 2007 and finally accepted by the plaintiff and banked on 28 January 2008.

[9]      It seems, however, that the plaintiff declined to acknowledge there was a set- off of amounts payable and she then set about to recover the remaining $23,100.00

of the costs award from the defendants.  Bankruptcy proceedings were commenced against two of the defendants but these were later withdrawn as against Ms Gilbert the first defendant.

[10]     The plaintiff’s bankruptcy proceedings brought against the second defendant

Mr Coleman were essentially dealt with in decisions of this Court dated 29 April

2008 and 11 June 2008 when applications by the second defendant to set-aside bankruptcy notices were before the Court.

[11]     In the decision given on 29 April 2008 His Honour Associate Judge Doogue ruled that the $23,100.00 monetary adjustment on partition would not be payable until the completion of the subdivision and the issue of separate titles, and that accordingly the costs order of $36,250.00 and the $23,100.00 could not be set off against each other.  This finding apparently reversed the opinion the Judge had given in an earlier decision dated 19 February 2008 that a set off could be made.

[12]     The judgment goes on to record that the plaintiff indeed acknowledged that the $23,100.00 would be due and payable by her on the issue of separate titles. Those separate titles it seems were issued in February 2012.

[13]     Interestingly, in September 2010 the Court of Appeal in dismissing an appeal before it brought by the plaintiff stated at [5] of the decision that:

Although she has had the costs awarded paid to her the applicant has not paid the monetary adjustment required of her.

[14]     In His Honour Associate Judge Doogue’s second decision of 11 June 2008, he recorded at [1] that the defendants had paid  to the plaintiff the full sum of

$36,250.00 as costs ordered against them by way of two payments.  It seems that Mr Coleman the second defendant made the second payment of $23,100.00 to avoid bankruptcy.  Evidence of this is before the Court, though as I understand it, none of this was drawn to the attention of His Honour Associate Judge Bell at the time.

[15]     It does seem clear also that the monetary compensation for the partition adjustment of $23,100.00 payable by the plaintiff to the defendants still remains

unpaid although again, as I understand the position, His Honour Associate Judge

Bell was not informed of this.

Judgment of His Honour Associate Judge Bell Under Review

[16]     Turning now to the judgment of His Honour Associate Judge Bell the subject of the present review application, the Associate Judge at [6] of what he described as a “Minute” stated:

[6]       The effect of this is that the entitlement of Mrs Gilbert and Mr Coleman to the monetary adjustment of $23,100.00 has been satisfied by being applied in reduction of the order for costs in favour of Mrs Robertson. Because the award of monetary adjustment has been satisfied in that way, Mr Coleman cannot now set in train the Court processes to enforce the judgment in favour of him and his sister.

[17]     In reaching that conclusion the Associate Judge referred to the judgment of Associate Judge Doogue dated 19 February 2008.   This judgment had effectively been reversed by Associate Judge Doogue in his later judgment dated 29 April 2013 with respect to admissibility of the set off.   In addition, it seems Associate Judge Bell, may not have been referred to Associate Judge Doogue’s decisions of 29 April

2008 and 11 June 2008 which each contained relevant information pertaining to the present case, and he failed to refer to these.

[18]     The Associate Judge also had not considered the view of the Court of Appeal noted at para [13] above that the plaintiff’s costs had been paid and the monetary adjustment was still owing.

[19]     It does seem therefore beyond question that the finding noted at para [16]

above upon which the Associate Judge’s decision rests that:

... the monetary adjustment of $23,100.00 has been satisfied by being applied in reduction of the order for costs in favour of Mrs Robertson.

is therefore incorrect.

[20]     Certainly  the  evidence  before  the  Court  including  the  evidence  of  Mr Coleman is to the contrary.  None of this is in any way contested by the plaintiff who neither opposed the present application nor appeared before me.

[21]     And, it was those errors which I am satisfied contributed to the Associate Judge making an error in his findings which in turn lead to his declining to grant leave to issue the charging order sought and to seal the judgment for $23,100.00.

Application for Review

[22]     As I  have  noted  at the  outset,  the  application before me is one pursuant to s 26P Judicature Act 1908 to review that decision of Associate Judge Bell.

[23]     The approach to be taken on such a review is  set out at McGechan  on

Procedure at para HR2.3.02 in part which reads as follows:

HR2.3.02    Approach to review

(1)    Overview

(a)       If the Associate Judge’s decision is a reasoned one, following a defended hearing (ie full argument from opposing parties), the approach is essentially appellate (r 2.3(4)). The starting point is the Associate Judge’s decision. The applicant has the burden of persuading the Court that the decision was wrong — that it rested on unsupportable findings of fact and/or applied wrong principles of law: Midland Metals Overseas Pte Ltd v Christchurch Press Co Ltd (2002) 16 PRNZ 107 at [13]. The Court will apply the approach in Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC

103, (2007) 18 PRNZ 768 (SC), which involves the Court making its own assessment as to  whether the original decision is  wrong:  Burmeister v O’Brien [2008] 3 NZLR 842, (2009) 9 NZBLC 102,415 (HC) at [29].The Judge has the discretion to rehear all or part of the evidence and to hear further evidence (r 2.3(4)).

[24]     Here, as I have concluded above, the further evidence which is now before the Court and which it seems the Associate Judge may not have had the benefit of seeing directly, confirms that the $23,100.00 partition adjustment debt owing by the plaintiff to the defendants remains outstanding.

[25]     That said, it must necessarily follow that the decision of the Associate Judge was wrong and cannot stand.

Conclusion

[26]     It follows that orders should now be made sealing the original judgment of 2

November 2005 and issuing the charging orders sought by Mr Coleman. [27]          Orders to this effect are now made.

[28]     As   to   costs,   Mr   Coleman   is   a   self-represented   litigant   here   and understandably did not seek an order for costs against the plaintiff.  There will be no order for costs made in favour of Mr Coleman.

[29]     The first defendant, however, was represented before me by Mr Cox.  I am satisfied that she is entitled to an order for costs against the plaintiff with respect to this application.

[30]     Costs are therefore awarded to the first defendant against the plaintiff on this successful application for review on a category 2B basis together with disbursements if any as fixed by the Registrar.

‘Justice D.I. Gendall’