Sunde v Sunde - [2020] NZHC 375

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-000768

[2020] NZHC 375

BETWEEN
ROY MELVIN SUNDE

First Plaintiff

MARINA ANNE SUNDE
Second Plaintiff

ANNE VERA SUNDE
Third Plaintiff

LEO ZANE SUNDE
Fourth Plaintiff

AND

LEO ZANE SUNDE, ANNE VERA SUNDE, ROY MELVIN SUNDE, KEVIN PAUL SUNDE and MARINA ANNE

SUNDE as trustees of the LEROY TRUST Defendants

Hearing: On the papers

Counsel:

J Cundy for R Sunde as First Plaintiff

P Moodley and S Philcox for R Sunde as Executor of Estate of L Sunde (Fourth Plaintiff)
J R Wain for K Sunde as Fourth-named Defendant

Judgment:

3 March 2020

COSTS JUDGMENT OF ASSOCIATE JUDGE P J ANDREW

This judgment was delivered by Associate Judge Andrew on 3 March 2020 at 4.00 pm
pursuant to r 11.5 of the High Court Rules Registrar / Deputy Registrar

Date: ……………………….

SUNDE v SUNDE [2020] NZHC 375 [3 March 2020]

Introduction

[1] In my judgment (No 2) of 22 November 2019,1 I granted summary judgment in favour of the fourth plaintiff, Roy Sunde, as executor of the estate of Leo Sunde and against the defendants (the trustees of the Leroy Trust) in the sum of $3,021,012.

[2]In this judgment I deal with the following issues:

(a)The quantum of costs to be awarded to Roy Sunde, the fourth plaintiff, as the successful party on the summary judgment application;

(b)whether Kevin Sunde is entitled to an indemnity from the Leroy Trust for his costs and, if so, the mechanism for approving those costs; and

(c)an uncontested amendment to the judgment figure being a correction of an accidental slip or omission.

Quantum of costs

[3] Despite the preliminary indication I gave in judgment No 2, I find that Roy, as the fourth plaintiff, should be awarded costs on a 2B basis in the total sum of
$16,023.25, as set out in the schedule to the plaintiff’s memorandum of 6 December 2019.

[4] Where a plaintiff’s summary judgment application is unsuccessful but the plaintiff is ultimately successful in the proceedings, the plaintiff, in the ordinary course, is still entitled to costs on the summary judgment application. The position is set out by the Court of Appeal in NZI Bank v Philpott:2
As with most questions of costs, they should be approached on broad principles. Whilst a defendant may be regarded as successful in one sense in resisting an application for summary judgment, it is of course not a final determination in the proceeding itself. If, ultimately, the plaintiff does succeed it seems to us in the general run of cases that the defendant should pay for both proceedings, the Court paying particular attention to the reasons why the plaintiff was unsuccessful in the first case. If those reasons include some

1 Sunde v Sunde [2019] NZHC 3056. See also my earlier judgment of Sunde v Sunde [2018] NZHC 2788 (referred to as judgment (No 1)).
2 NZI Bank v Philpott [1992] NZLR 403, (1990)…

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 Sunde v Sunde

Details

AGLC: Sunde v Sunde [2020] NZHC 375
Case: [2020] NZHC 375
Decision Date: 3 March 2020

CaseChat Overview and Summary

In the High Court of New Zealand, Associate Judge P J Andrew delivered a judgment on 3 March 2020, concerning a dispute between members of the Sunde family. The case, Sunde v Sunde, involved several plaintiffs and defendants, with Roy Melvin Sunde as the fourth plaintiff and executor of the estate of Leo Sunde, and Kevin Paul Sunde and Marina Anne Sunde as trustees of the Leroy Trust. The primary issues before the court were the determination of costs to be awarded, the entitlement of Kevin Sunde to an indemnity from the Leroy Trust for his costs, and a correction to the judgment figure.

The legal issues revolved around the quantum of costs to be awarded to Roy Sunde as the successful party in the summary judgment application, whether Kevin Sunde was entitled to an indemnity from the Leroy Trust for his costs, and the mechanism to approve those costs if an indemnity was granted. Additionally, the court addressed an amendment to the judgment figure to correct an accidental omission.

Associate Judge Andrew determined that Roy Sunde, as the successful party, should be awarded costs on a 2B basis, totaling $16,023.25, as detailed in the schedule attached to Roy Sunde’s memorandum of 6 December 2019. The court reasoned that despite the unsuccessful summary judgment application, Roy Sunde was entitled to costs due to the lack of merit in the defences raised by Kevin Sunde on behalf of the Leroy Trust. Kevin Sunde was found to be entitled to an indemnity from the Leroy Trust for his reasonable costs associated with the first summary judgment application but not for the second. The court suggested that the parties should engage a suitably qualified practitioner to vet the reasonableness of the costs and propose a quantum for the indemnity. The final orders included the correction of the judgment figure to $3,021,021 and the direction for further consideration of the indemnity costs by the parties.

Orders