Tervoert v Scobie

[2020] NZHC 1967

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2018-443-11

[2020] NZHC 1967

BETWEEN

JAN-MARIE TERVOERT

Plaintiff

AND

NOEL GEORGE ARCHIBALD SCOBIE MARIE JUNE SCOBIE

DOWNSEND TRUSTEE LIMITED

Defendant

On the papers
Counsel:	P J Mooney for the Plaintiff S J Shamy for the Defendants
Judgment:	6 August 2020

JUDGMENT OF CULL J

[On Costs]

[1]                 Following the judgment delivered on 19 May 2020,1 Counsel for both parties have filed memoranda of costs. The plaintiff seeks costs on a 2B basis, having been successful on one of the two alternative causes of action in the proceeding.

[2]                 The defendants oppose the award of costs to the plaintiff, submitting that costs should lie where they fall. They say that the plaintiff did not succeed on the major aspect of her claim, namely constructive trust, and she has the benefit of a generous award of interest under the judgment in respect of her successful alternative claim for quantum meruit. Reliance for this submission is based on the original statement of claim, which did not plead quantum meruit. It was pleaded in an amended statement of claim 10 months after the original claim was filed. The relevance of this is that the

1      Tervoert v Scobie [2020] NZHC 1039.

TERVOERT v SCOBIE [2020] NZHC 1967 [6 August 2020]

costs for preparation involved the unsuccessful constructive trust claim, not the quantum meruit claim which was initially pleaded with an incorrect amount for the plaintiff’s payments to the defendants.

[3]                 In this case, the claim for costs on a 2B basis is unremarkable. Costs follow the successful outcome for the plaintiff and are sought within the ordinary range applicable. No reasons are normally required in such circumstances.

[4]                 However, addressing the defendants’ submissions, the plaintiff was successful in one of the alternative causes of actions. The same facts, background and financial contributions were applicable to both causes of actions. In the end, the plaintiff succeeded on a quantum meruit basis, albeit at a lower amount than sought. The interest awarded takes into account the work which the plaintiff undertook over the time period, for which no use of money interest of compound interest was calculated.

[5]I consider that the plaintiff’s claim for costs on a 2B basis is reasonable.

[6]                 Accordingly, costs are awarded to the plaintiff on a 2B basis totalling $41,347, together with disbursements of $2,100.

Cull J

Solicitors:

Mooney and Webb, New Plymouth for the Plaintiff

Ian Robertson and Co, Christchurch for the Defendants