Sparks v Olliver - [2021] NZHC 3600

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2015-404-2828

[2021] NZHC 3600

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:
23 October 2020, 19 March 2021, 28 April 2021.

Further submissions filed 10 & 17 May 2021,
2, 5 & 10 August 2021,
8 December 2021

Appearances:

S P Sparks in person

J McCartney QC Amicus Curiae
PJK Spring and K J Ng for First and Second Defendants

Judgment:

22 December 2021

COSTS JUDGMENT OF DUFFY J

This judgment was delivered by me on 22 December 2021 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

SPARKS v OLLIVER [2021] NZHC 3600 [22 December 2021]

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] The substantive hearing of this proceeding commenced on 11 July 2017 and was adjourned part heard. The proceeding was scheduled to resume on 10 June 2019. However, there were settlement discussions throughout 2018 and 2019. The resumed hearing was further adjourned to 15 June 2020. However, on 19 May 2020 the plaintiff, Sarah Sparks, filed a notice of discontinuance. This was done without any agreement with the defendants as to costs.

[2] Rule 15.23 of the High Court Rules provides that unless the defendant otherwise agrees or the court otherwise orders, a plaintiff who discontinues a proceeding against a defendant must pay costs to the defendant up to and including the discontinuance.

[3] In reliance on r 15.23 Mr Olliver seeks costs against Ms Sparks. Those costs are sought on an indemnity or increased basis, or at the very least at scale, being category 3B of the Schedule to the High Court Rules.

[4]On the other hand, Ms Sparks contends she should not be liable for costs.

[5]Counsel assisting submits that costs should be set at no more than category 2B.

[6]The principles underlying the application of r 15.23 are well explained in

McGechan on Procedure:1

The following emerge from Chroma Colour Prints Ltd v Tridonic Atco NZ Ltd and FM Custodians Ltd v Pati and Opus International Consultants Ltd v Colac Bay Vision Ltd:

(a)the r 15.23 presumption obviates any requirement for the defendant to demonstrate that the plaintiff acted unreasonably in commencing and then discontinuing the proceeding. The defendant has the advantage of the presumption even where there has not been such unreasonableness.

(b)Although the…

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 [2021] NZHC 3600
Case: [2021] NZHC 3600
Decision Date: 22 December 2021

CaseChat Overview and Summary

The case of Sparks v Olliver involved a claim for relationship property under the Property (Relationships) Act 1976 and the Family Proceedings Act 1980 between Sarah Sparks and Gregory Olliver. The primary legal issues were whether Sarah Sparks should be liable for costs after discontinuing the proceedings without reaching an agreement with Gregory Olliver on costs, and if so, the appropriate level of costs. Gregory Olliver sought costs on an indemnity or increased basis, arguing that Sarah Sparks had unreasonably pursued the proceedings despite clear indications that she was unlikely to succeed. Conversely, Sarah Sparks argued that she should not be liable for costs due to the complexity of the case and the lack of clear evidence supporting Gregory Olliver's claims.

The court considered the principles underlying the application of Rule 15.23 of the High Court Rules, which presumes that a plaintiff who discontinues a proceeding must pay costs to the defendant unless otherwise agreed or ordered by the court. The court acknowledged that the presumption could be displaced if there were circumstances making it just and equitable not to apply it. However, the court found that Sarah Sparks had not acted unreasonably in discontinuing the proceedings, as the settlement offers were not capable of acceptance due to their inclusion of a counterclaim that had not been pleaded and the potential impact on the interests of minor children who were not legally represented. Furthermore, the court found no evidence that Sarah Sparks had acted fraudulently, maliciously, or in bad faith, or that she had wilfully pursued a hopeless claim. Therefore, the court concluded that there was no basis for awarding indemnity costs against Sarah Sparks.

Regarding increased costs, the court found that Sarah Sparks' refusal to accept the settlement offers was not unreasonable given the terms of the offers and the potential impact on the minor children. The court also noted that Sarah Sparks had not acted unreasonably in pursuing the proceedings until she discontinued them, particularly in light of the judgment in Sparks v St Heliers Capital Ltd (in liq), which highlighted the difficulties she would face in proving her claims. The court did not accept that Sarah Sparks' conduct warranted an award of increased costs.

The court ultimately decided that the general presumption in Rule 15.23 should apply, and Gregory Olliver was awarded scale costs at category 2B for the periods when he was legally represented. The court rejected the argument for costs at category 3B, considering the proceedings fit category 2B due to time-wasting actions rather than legal complexity. The court instructed Gregory Olliver to provide an itemised schedule of those costs and directed that claims for disbursements would be dealt with concurrently.

Orders