Thaller v Trotter - [2017] NZHC 1118

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/Respondents

Judgment:

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…

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 Thaller v Trotter

Details

AGLC: Thaller v Trotter [2017] NZHC 1118
Case: [2017] NZHC 1118
Decision Date: 26 May 2017

CaseChat Overview and Summary

In the High Court of New Zealand, Justice Peters delivered judgment on 26 May 2017, addressing a dispute between Ewald Thaller and Stephen Trotter over the division of their relationship property and other incidental matters. The case involved two separate proceedings that were consolidated before the court. Initially, Mr. Thaller was awarded costs and disbursements in July 2016, but the parties could not agree on the amount of costs. Mr. Thaller sought indemnity costs following a Calderbank offer he made on 4 September 2013, which Mr. Trotter declined. Failing that, Mr. Thaller sought an order to increase the costs payable by 50 per cent. Mr. Trotter argued that Mr. Thaller should be awarded only $52,041, calculated on the 2B scale under the District Court or High Court Rules.

Justice Peters declined Mr. Thaller's claim for indemnity costs, stating that the circumstances for such an award under High Court Rules, r 14.11 did not arise in this case. However, the court found that Mr. Trotter did not have reasonable justification for refusing Mr. Thaller's offer, as the outcome at trial was largely the same as the offer. The court also considered various aspects of Mr. Trotter's conduct that contributed unnecessarily to the time or expense of the proceedings, such as his failure to offer a coherent account of the parties' financial affairs and the late provision of financial statements. Consequently, the court decided to increase the costs payable by 50 per cent. This increase was sufficient to cover other costs related to Mr. Trotter's conduct, such as the last-minute cancellation of a mediation and delays in filing and serving documents. The court awarded Mr. Thaller his claimed disbursements and directed that Mr. Trotter pay an increased amount of costs.

Orders