Sisson v Official Assignee - [2017] NZHC 555

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2016-409-000185 [2017] NZHC 555

BETWEEN
THERESE ANNE SISSON

Plaintiff

AND

THE OFFICIAL ASSIGNEE First Defendant

THE COMMISSIONER OF INLAND REVENUE

Second Defendant

Hearing: 17 March 2017

Appearances:

Plaintiff - In Person
B Russell and K Kendrick for Official Assignee
S Kinsler and P J Shamy for Commissioner of Inland Revenue
D J Hampton as Plaintiffʼs McKenzie Friend

Judgment:

24 March 2017

JUDGMENT OF GENDALL J [As to Costs]

SISSON v THE OFFICIAL ASSIGNEE [2017] NZHC 555 [24 March 2017]

Introduction

[1] This judgment relates to costs on this proceeding CIV-2016-409-185.

[2] The hearing of the substantive matter in this proceeding commenced before me on 13 February 2017 along with several other matters involving the plaintiff Therese Ann Sisson (Ms Sisson), the second defendant the Commissioner of Inland Revenue (the Commissioner), Chesterfields Preschools Limited (In Liquidation) (Chesterfields), and IAG New Zealand Limited (IAG).

[3] That hearing continued until 16 February 2017, the fourth day of the hearing. On that date all matters including the present proceeding were concluded with Ms Sisson first, discontinuing the present proceeding CIV-2016-409-185 along with another proceeding CIV-2016-409-304, and secondly, consenting to orders against her sought by Chesterfields as plaintiff in CIV-2016,409-40. In addition, Ms Sisson’s review of a judgment of Associate Judge Osborne striking out CIV-
2016-409-637 was dismissed.

[4] I turn now to the proceeding the subject of the present costs judgment, CIV-

2016-409-185. On 16 February 2017 in this proceeding I gave an oral judgment granting leave to Ms Sisson at her request to discontinue the matter. In doing so, I made orders and decisions regarding costs to this effect:

(a) Given that the first defendant in the present proceeding (the Official Assignee in Bankruptcy (in the estate of David John Hampton) (the Official Assignee)) had indicated that, as part of the arrangements resulting in Ms Sisson’s discontinuance of this matter, the Official Assignee’s position on costs was that she did not seek costs from Ms Sisson but would simply rely upon an award of costs on a 2B basis being made against the non party David John Hampton (Mr Hampton), an order to this effect was made.

(b) No order was made as to costs against Ms Sisson in favour of the

Official Assignee.

(c) As the second defendant the Commissioner had sought costs on this proceeding against both Ms Sisson and Mr Hampton, in relation to those costs applications I made certain directions. These dealt with the filing of memoranda by the respective parties and a hearing of that costs application. Memoranda were filed and that hearing took place in this Court on 17 March 2017. At that hearing I reserved my decision on the Commissioner’s application for costs against both Ms Sisson and Mr Hampton. I now give that decision, and make the costs orders that follow.

Background

[5] By way of background to this proceeding generally, Ms Sisson as plaintiff had sought declarations that a property at 67 Augusta Street, Christchurch…

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 Sisson v Official Assignee

Details

AGLC: Sisson v Official Assignee [2017] NZHC 555
Case: [2017] NZHC 555
Decision Date: 24 March 2017

CaseChat Overview and Summary

In the High Court of New Zealand, Sisson v Official Assignee was heard to determine costs associated with a discontinued proceeding. The plaintiff, Therese Anne Sisson, sought declarations regarding a property at 67 Augusta Street, Christchurch, claiming it was settled on a family trust known as the Anolbe Family Trust. The Official Assignee in Bankruptcy (in the estate of David John Hampton) and the Commissioner of Inland Revenue were the defendants. Sisson discontinued the proceeding before the substantive hearing concluded. The Commissioner sought costs against Sisson and Mr Hampton, claiming they unreasonably brought the proceeding despite warnings.

The court found that Rule 15.23 applied, requiring Sisson to pay costs to the Commissioner. The court also found that Sisson acted unreasonably by bringing a meritless claim and pursuing interlocutory applications with no chance of success, warranting an award of increased costs. Mr Hampton had already consented to costs being awarded against him. The Commissioner's costs and disbursements were apportioned equally between Sisson and Mr Hampton, reflecting their respective roles in the proceeding. The court confirmed the Official Assignee's costs claim against Mr Hampton and ordered Sisson and Mr Hampton to each pay 50% of the Commissioner's costs and disbursements.

Orders