Thaller v Trotter
[2017] NZHC 1118
•26 May 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2015-404-179 [2017] NZHC 1118
BETWEEN EWALD THALLER
Plaintiff
AND
STEPHEN DAVID TROTTER AS TRUSTEE OF THE STEPHEN TROTTER TRUST
Defendant
CIV-2015-404-444
BETWEEN EWALD THALLER Applicant
ANDSTEPHEN DAVID TROTTER First Respondent
STEPHEN DAVID TROTTER AS TRUSTEE OF THE STEPHEN TROTTER TRUST
Second Respondent
Hearing: 10 March 2017 Appearances:
G A Ireland for Plaintiff/Applicant
V A Crawshaw for Defendant/RespondentsJudgment:
26 May 2017
COSTS JUDGMENT OF PETERS J
This judgment was delivered by Justice Peters on 26 May 2017 at 1 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date: ...................................
Solicitors: LawWorks, Auckland
Glaister Ennor, Auckland
Counsel: V A Crawshaw, Auckland
THALLER v TROTTER [2017] NZHC 1118 [26 May 2017]
[1] These proceedings concerned the extent and division of the parties’ relationship property, and incidental matters. I gave judgment in July 2016, largely in Mr Thaller’s favour, and awarded him costs and disbursements.1 There is no dispute as to the disbursements, but the parties have been unable to agree on costs.
[2] In the first instance, Mr Thaller seeks an award of indemnity costs after
4 September 2013. That is the date of a Calderbank offer Mr Thaller made and which Mr Trotter declined (“offer”). Indemnity costs on that basis would be
$253,070.16.2
[3] Failing that, Mr Thaller seeks an order increasing the costs otherwise payable by 50 per cent.
[4] Mr Trotter’s position is that Mr Thaller should have costs of $52,041, these being calculated on the 2B scale under the District Court or High Court Rules as the case may be.
[5] The background to the proceedings is set out in my judgment. For reasons given below, I decline to award indemnity costs to Mr Thaller but do increase the costs otherwise payable by 50 per cent.
Disbursements
[6] I award Mr Thaller his claimed disbursements of $70,290.45, including GST.
Claim for indemnity costs
[7] I decline Mr Thaller’s claim for indemnity costs. As I have said, this claim is based on Mr Thaller’s offer of 4 September 2013. I shall refer to that offer in greater detail in the context of Mr Thaller’s claim for increased costs. However, counsel for Mr Thaller’s submissions for indemnity costs proceed on the basis that a defendant who declines an offer of settlement and then fares worse at trial is exposed to an
award of indemnity costs under High Court Rules, r 14.11.3 I do not accept that
1 Thaller v Trotter [2016] NZHC 1508.
2 Including GST and office expenses/disbursements.
3 Any reference to a rule from hereon is to a rule of the High Court Rules.
submission on several levels but first and foremost indemnity costs may only be awarded in the circumstances of r 14.6(4). None of those circumstances arise here and I decline the claim for indemnity costs accordingly.
Claim for increased costs
[8] I turn now to the claim for increased costs under r 14.6(3).
[9] As a general rule, an award of increased costs is made by an “uplift” from the costs otherwise payable by the application of rr 14.2 to 14.5. The parties have been unable to agree on the costs payable under those rules. The submissions made to me, and my decisions, are as follows.
[10] Mr Thaller’s first submission is that I should re-classify the proceeding as category “3” and allow the time permitted under band C of Schedule 3 for most steps in the proceeding. If I do not accept that submission, Mr Thaller asks for the costs of two proceedings, because there were two proceedings before the High Court. In the first, commenced in February 2015, Mr Thaller sought orders against Mr Trotter in his capacity as trustee of the Stephen Trotter Trust (“trust”). The second was the proceeding Mr Thaller originally commenced in the Family Court in August 2013, seeking orders under the Property (Relationships) Act 1976 (“Act”). This was transferred to the High Court in March 2015.
[11] As to the first submission, orders made by Sargisson AJ at the first and only case management conference (“CMC”) on 25 May 2015 are relevant. At the CMC, the Judge classified the proceedings as category 2. Category 2 proceedings are “Proceedings of average complexity requiring counsel of skill and experience considered average in the High Court”.
[12] I do not propose to re-classify the proceedings as category 3. The Judge’s
classification was appropriate and it must continue unless there are “special reasons to the contrary”.4 I accept counsel for Mr Trotter’s submission that no special reason
4 High Court Rules, r 14.3(2).
exists. Nor was the case sufficiently complex or significant to warrant a category 3 classification.
[13] That said, the issue of what is a reasonable time for each step is at large because, contrary to counsel’s submissions, the Judge did not allocate a “band” for determining the time to be permitted for each step under Schedule 3 of the rules. As I have said, Mr Thaller has submitted that the time allowed in band C is reasonable for many, if not all, of these steps. I accept this submission in respect of Mr Thaller’s memorandum for the CMC, preparation of briefs/affidavits and preparation for hearing, being steps 11, 30 and 33 of Schedule 3. The time specified in band C for these steps is reasonable in the circumstances of this case.
[14] As for the issue of one set of costs or two, Sargisson AJ consolidated the two proceedings at the CMC and I accept the submission of counsel for Mr Trotter that thereafter the proceedings were conducted and argued as one. Given that, Mr Thaller should have one set of costs, subject to allowing the costs of two statements of claim.
[15] Accordingly, and subject to any increase, Mr Thaller is entitled to the costs of two statements of claim in the High Court on a 2B basis, costs on a 2C basis for steps 11, 30 and 33 of Schedule 3, but otherwise costs on a 2B basis under the High or District Court Rules (as the case may be) for one proceeding. My estimate is that costs on this basis will be approximately $65,000.
[16] Coming back to the issue of increased costs, I am satisfied that I may and should increase the costs that Mr Trotter is required to pay. Of the various submissions made, I accept the following.
Offer
[17] I do not consider Mr Trotter had reasonable justification for refusing
Mr Thaller’s offer.
[18] The parties separated in April 2013 after a relationship of 20 years. As I said in the judgment, the relationship had been “rocky” for some years so the separation was not wholly unexpected.
[19] In August 2013, Mr Thaller commenced proceedings in the Family Court for orders as to the division of relationship property under the Act. On 2 September
2013, through his solicitors, Mr Trotter sent a six page Calderbank offer discussing what Mr Trotter considered to be the property potentially in issue and what he proposed by way of division. The property Mr Trotter identified comprised the assets of a farming partnership, chattels, cash, shares and, of most significance, real estate referred to as “Oakdale”, “Wyllie Road” and the “Epsom property” (“real estate”).
[20] The gist of Mr Thaller’s response, that is the offer, was to propose the equal division of the net equity of the real estate and the equal division of all other assets, subject to allowing Mr Trotter a deduction “for the provable value of assets” he owned “in his name” when the relationship began.
[21] In December 2013, Mr Trotter rejected the offer on the basis that the parties had “very different expectations” and made a further offer which Mr Thaller declined.
[22] By the time of trial, the only assets in dispute were the real estate and a debt to which I refer in the next paragraph. In so far as concerns the real estate, counsel for Mr Trotter conceded in her opening submissions that Wyllie Road was subject to equal division and so that item fell away. That left the Epsom property and Oakdale and my findings in respect of these assets were entirely consistent with Mr Thaller’s offer.
[23] The debt to which I referred was one of $223,000 or thereabouts that the trust owed to Mr Trotter. That debt came to light after the Calderbank correspondence. I note that Mr Trotter did not refer to it in his letter of 2 September 2013. I held that
$120,000 of the debt was due to Mr Trotter as his separate property, with the balance of $100,000 relationship property.
[24] As counsel for Mr Trotter accepted, at the very least the outcome Mr Thaller offered to Mr Trotter was “close to” the outcome at trial, “close to” being the words
in r 14.11(4)(b). It may be that Mr Trotter would have been better to accept the offer but for present purposes it is sufficient to say the outcome was largely the same.
Reasonable justification
[25] Counsel for Mr Trotter submitted that Mr Trotter had reasonable justification for rejecting the offer because it was made shortly after the proceedings were issued. I accept this but clearly Mr Trotter considered himself sufficiently informed to make his own Calderbank offers, being the one of 2 September 2013 and the other in December 2013. Counsel also referred in submissions to Mr Trotter’s “genuine belief” as to the correctness of his position on the real estate assets. But r 14.6(3) requires an objective assessment of the reasonableness or otherwise of a refusal.
[26] Counsel also submitted that the $595,038 plus interest I allowed to the trust in respect of Oakdale (see [65] of my judgment) was a significant benefit to Mr Trotter over and above the terms of the offer. This is not correct. Even if Mr Trotter is to be equated with the trust (of which both Mr Trotter and Mr Thaller are beneficiaries), Mr Thaller’s offer recognised that a sum was due to the trust in respect of the Oakdale asset. This is apparent when Mr Thaller’s offer is read with Mr Trotter’s offer two days earlier.
[27] Counsel also submitted that Mr Trotter was advantaged by proceeding to trial because Mr Thaller’s offer did not address the debt. I do not accept this submission given that Mr Trotter did not disclose the debt in his opening letter of 2 September
2013. Mr Trotter’s non-disclosure of that asset is not a matter on which he can rely as constituting a reasonable justification for rejection of the offer.
[28] For these reasons, I consider Mr Trotter did not have reasonable justification for rejecting the offer.
Other matters
[29] I turn now to the other respects in which it is contended that Mr Trotter contributed unnecessarily to the time or expense of the proceeding or a step in it, or other reasons said to justify the making of an order for increased costs.5
[30] The most problematic aspect of Mr Trotter’s conduct of the proceeding was his failure to offer a coherent account of the parties’ financial affairs. By this I mean an account of who – Mr Trotter, Mr Thaller, both of them together, the trust, Mr Trotter’s mother, the Marjory Trotter Family Trust or trading banks – had advanced/borrowed what sums, when, to and from whom, against what security, when debts had been repaid and how and so on. I consider it was for Mr Trotter to provide this information or to instruct someone else to do so, because Mr Trotter was/is an accountant, had been in charge of the parties’ financial affairs throughout their relationship, he knew what had occurred, and he had access to the records. What should have been a straightforward exercise was made complicated by Mr Trotter’s case and evidence, which were imprecise, inaccurate and confusing in some respects. Mr Trotter’s failure to call an expert accountant to assist the Court complicated matters further.
[31] Moreover, at a late stage of the proceeding Mr Trotter engaged a firm of accountants to prepare financial statements for the parties’ farming partnership over many years, essentially to show a reorganisation of the shareholders’ accounts. Ultimately, I was not required to consider these statements but I am satisfied their late provision caused increased cost to Mr Thaller.
[32] Then there was Mr Trotter’s concession at trial that the proceeds of sale of Wyllie Road were subject to equal division. This concession could have been made well before trial. As it was not, Mr Thaller gave detailed evidence of the efforts to which he had gone to ensure the best possible price was achieved on sale.
[33] Other aspects of Mr Trotter’s case were implausible and/or stood no prospect of success. One example is Mr Trotter’s evidence in relation to Oakdale, to the
5 High Court Rules, r 14.6(3)(b) and (d).
effect that in late 2001 he did not know of imminent amendments to the Act to extend its application to those in de facto relationships, that is to Mr Trotter and Mr Thaller. These amendments were passed in early 2002 and were the subject of much prior public debate and media coverage. Mr Trotter also asserted that Mr Thaller had been content to devote time and money to Oakdale (a farm) over many years but without having a beneficial interest in the property.
[34] As regards the Epsom property, Mr Trotter asserted that this was his separate property. Such a finding would have required the Court to disregard many years of the parties’ income tax and GST returns (which Mr Trotter had prepared), the effect of which was to represent to the IRD that each party had a 50 per cent beneficial interest in the Epsom property. Mr Trotter’s case to the Court was that these returns should be put to one side as they were “for tax purposes only”. A more realistic approach by Mr Trotter to this issue was required and would have reduced costs.
[35] Mr Trotter’s contention that equal division of the relationship property would be repugnant to justice also stood no prospect of success but increased Mr Thaller’s costs unnecessarily.
Decision
[36] Taking all of these matters into account, I am satisfied that an increase of
50 per cent is required to the costs to be ascertained in accordance with [15] above.
[37] Mr Thaller advanced various other respects in which he contended Mr Trotter’s conduct had been unreasonable and which had led to Mr Thaller incurring increased costs. These included what was said to be a last minute cancellation of a previously agreed mediation; Mr Trotter’s refusal to extend the jurisdiction of the Family Court in respect of a particular matter; and his delay in filing and serving answers to interrogatories and further and better particulars. I am not satisfied that the first two matters were unreasonable or that the third led to increased costs of any significance.
[38] I also make no award in respect of the sums Mr Thaller seeks regarding his submissions as to who might be appointed as a trustee of the trust in place of
Mr Trotter, and his submissions regarding costs. Even if it were open to me to make an award for these matters (and Mr Thaller has had only partial success on costs), the
uplift I have allowed is sufficient to cover these items.
Peters J
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