Sue v Sue - [2025] NZHC 323

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-454-32

[2025] NZHC 323

UNDER THE Property Law Act 2007

IN THE MATTER OF

an application for an order for sale

BETWEEN

PANATAHI SUE

Applicant

AND

TANYA JANE SUE

Respondent

Hearing: On the Papers

Counsel:

G P Mason for Applicant M J Leggat for Respondent

Judgment:

27 February 2025

JUDGMENT OF CHURCHMAN J

[Costs]

Introduction

[1] Panatahi Sue commenced proceedings against Tanya Sue (her daughter) in relation to a jointly owned property at Colyton (the Property).

[2] Following a defended hearing on 3 — 4 November 2024, I issued a reserved decision on 18 December 2024.

[3] Panatahi Sue was successful, and I ordered that the defendant purchase her share in the Property on the basis of a valuation. In the alternative I directed that if the defendant did not wish to buy the plaintiff’s half share in the Property, the Property was to be sold and the net sale proceeds divided equally.

SUE v SUE [2025] NZHC 323 [27 February 2025]

[4]I made a timetable order for filing memoranda in relation to costs.

The plaintiff’s application

[5] By memorandum dated 23 December 2024 the plaintiff sought costs in accordance with a schedule provided. A number of contentious issues were covered by that application including the extent to which the plaintiff was entitled to costs in respect of a security for costs application brought by the defendant some 18 months after the proceeding began; what the effect of a Calderbank offer would be; whether increased costs should be awarded; what costs were appropriate in respect of the defendant’s counter claims and the effect of certain delays that occurred during the course of the proceedings.

[6] The plaintiff’s claim for total costs and disbursements was $83,870.20 (including an uplift). If calculated on a 2B basis, costs and disbursements were said to be $64,738.25.

[7] The plaintiff filed a further memorandum of 30 January 2025 responding to certain documents filed by the defendant in her memorandum of 23 January 2025 and also commented on matters of discovery, what was said to be late disclosure, and other issues raised by the defendant.

The defendant’s response

[8] Counsel for the defendant/counter claim plaintiff has filed three memoranda. The first was dated 9 January 2025 and sought an extension on the time the defendant was required to file a memorandum (from 10 January to 21 January 2025). The second memorandum of 23 January 2025 dealt with the substantive claim and a third memorandum of 31 January 2025 essentially objected to the plaintiff’s memorandum of 30 January 2025.

[9] The defendant’s memorandum of 23 January 2025 was unusual in two respects. The first of those respects was that it seemed to be an attempt to relitigate issues that had been determined against the defendant. A costs memorandum is not the place for challenging the Court’s findings. The second unusual aspect of the memorandum is

that it referred 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 Sue v Sue

Details

AGLC: Sue v Sue [2025] NZHC 323
Case: [2025] NZHC 323
Decision Date: 27 February 2025

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Panatahi Sue v Tanya Jane Sue involved a dispute over jointly owned property in Colyton. Following a defended hearing, the Court ordered Tanya to purchase Panatahi's share of the property or, alternatively, ordered a sale of the property with the proceeds divided equally. Panatahi then applied for costs, seeking a total of $83,870.20. Tanya responded with her own costs memorandum, objecting to several aspects of Panatahi's claim and raising new documentation that had not been previously disclosed.

The court examined the appropriateness of the costs sought by Panatahi, focusing on the nature of the proceedings, the application of Calderbank offers, and the relevance of new documentation introduced by Tanya. The court considered whether the costs claimed were reasonable and whether the new documentation could be taken into account in the costs assessment. The court also evaluated the validity of Tanya's security for costs application and its impact on the costs awarded.

After thorough analysis, the court concluded that the proceedings should be categorised as 2B, and an uplift in costs was warranted due to the favourable Calderbank offer made by Panatahi. The court determined that a 30% uplift was appropriate for costs incurred after the Calderbank offer date, and a 15% uplift was applicable to certain preparatory work. The court also ruled that Tanya was not entitled to costs related to her unsuccessful counterclaims. Regarding the security for costs application, the court found that it was not justified, and thus Panatahi was entitled to costs associated with that application. The court fixed the costs of the security for costs hearing on a 2B basis without an uplift, considering the delay and the relationship dynamics between the parties. The court approved certain disbursements claimed by Panatahi, including travel and process server fees.

The final orders were that Panatahi's costs would be assessed and paid by Tanya, with specific uplifts applied as detailed in the judgment. Panatahi was also entitled to costs associated with the security for costs application, fixed on a 2B basis.

Orders