Sparks v Olliver - [2022] NZHC 633

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2015-404-2828

[2022] NZHC 633

UNDER the Property (Relationships) Act 1976

IN THE MATTER

of s 182 of the Family Proceedings Act 1980

BETWEEN

SARAH PATRICIA SPARKS

Plaintiff

AND

GREGORY MARTIN OLLIVER

First Defendant

(Continued next page)

Hearing: On the papers

Judgment:

31 March 2022

COSTS JUDGMENT (NO 2) OF DUFFY J

This judgment was delivered by me on 31 March 2022 at 4.00 pm pursuant to
Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

SPARKS v OLLIVER COSTS (NO 2) [2022] NZHC 633 [31 March 2022]

BANKHOUSE TRUST LIMITED (as
trustee of the BANKHOUSE TRUST) Second Defendant
AUCKLAND WEST LEGAL SERVICES LIMITED, BAILEY TRUSTEE
SERVICES LIMITED and THE GLOVER
FAMILY TRUST LIMITED (as trustees of the GLOVER TRUST)
Third Defendant
CAPITAL INVESTMENTS TRUST
LIMITED (as trustee of the CAPITAL INVESTMENTS TRUST)
Fourth Defendant
THE BBG TRUST LIMITED (as trustee of the BBG TRUST)
Fifth Defendant
OLLIVER TRUSTEE LIMITED (as trustee of the OLLIVER FAMILY TRUST)
Sixth Defendant
THE PHOENIX TRUST LIMITED (as
trustee of the PHOENIX TRUST) Seventh Defendant

[1] This judgment should be read together with the costs judgment I delivered on 22 December 2021.1 In that judgment I found that the plaintiff, Ms Sparks, is liable to pay category 2B costs to the first defendant, Mr Olliver. I now determine the quantum of the category 2B costs for Mr Olliver.

[2] I also now determine whether Mr Olliver and the second defendant Bankhouse Trust Ltd (Bankhouse) are entitled to claim for the disbursements they each seek from Ms Sparks.

Quantum of costs

[3] Mr Olliver has now provided a costs schedule at category 2B which commences from the time the proceeding was first filed in the Family Court in September 2014 and concludes with the discontinuance in this Court in 2020.2

[4] Counsel assisting the Court, Ms McCartney QC, had earlier provided a schedule of costs based on category 2B.

[5] Ms Sparks has filed various memoranda disputing her liability for costs but has not to my knowledge filed a schedule of scale costs based on category 2B for payment to Mr Olliver. Nor do her various memoranda address the quantum of costs, which is the issue for determination.

[6] Accordingly, the costs quantification will be based on the schedules provided by Mr Olliver and Ms McCartney.

[7]Mr Olliver has helpfully divided the cost allocations into three stages to reflect:

(a) stage one proceedings in Family Court; (b) stage two when the proceeding was first transferred to this Court and Mr Olliver was legally represented; and (c) stage three, which was the final stage in this proceeding when Mr Olliver was legally represented. There was a period between stage two and three in this Court when he was self-represented and, therefore, not entitled to claim costs.

1 Sparks v Olliver Costs [2021] NZHC 3600.
2 Memorandum of counsel for first and second defendants as to…

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 Sparks v Olliver

Details

AGLC: Sparks v Olliver [2022] NZHC 633
Case: [2022] NZHC 633
Decision Date: 31 March 2022

CaseChat Overview and Summary

This case involved a proceeding under the Property (Relationships) Act 1976 between Sarah Patricia Sparks and Gregory Martin Olliver, with various trusts as defendants. The court was required to determine the quantum of category 2B costs for Mr Olliver and whether Mr Olliver and Bankhouse Trust Ltd were entitled to claim disbursements from Ms Sparks. The court also needed to decide if Bankhouse Trust Ltd was entitled to claim disbursements for the preparation of financial statements for the purpose of the litigation.

The court first considered the quantum of category 2B costs for Mr Olliver. It was found that Mr Olliver was entitled to costs for the Family Court proceedings, the period when he was legally represented in this Court, and the final stage in this proceeding when he was again legally represented. The total costs awarded to Mr Olliver for these three stages came to $14,142. The court then examined the disbursements sought by Mr Olliver and Bankhouse Trust Ltd. Mr Olliver was found to be entitled to a limited number of disbursements, while Bankhouse Trust Ltd was awarded disbursements for the preparation of financial statements for the purpose of the litigation.

In conclusion, Mr Olliver was awarded category 2B costs in the sum of $14,142 and disbursements in the sum of $567.38. Bankhouse Trust Ltd was awarded disbursements in the total sum of $125,406.76.

Orders