Turvey v Reeves - [2022] NZHC 1184

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2019-485-000129 [2022] NZHC 1184

BETWEEN
DARYN TURVEY

Plaintiff

AND

GRAEME REEVES

Defendant

AND

CORNWALLIS TRUSTEES LIMITED

Second Defendant

AND

PATRICIA TURVEY

Third Defendant

Hearing: On the papers

Counsel:

T Mijatov and O L Wilkinson for Plaintiff D P MacKenzie for Third Defendant

Judgment:

26 May 2022

COSTS JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 26 May 2022 at 11.00 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

TURVEY v REEVES [2022] NZHC 1184 [26 May 2022]

[1] In a judgment of 12 April 2022, I determined an application by the third defendant to strike out the plaintiff’s amended statement of claim and/or for summary judgment.1 The application for summary judgment was dismissed, but due to serious deficiencies in the amended statement of claim, the plaintiff (Mr Turvey) was ordered to file a further amended statement of claim within 42 days.2 The plaintiff’s application for strike out was adjourned with leave reserved to bring it back before the Court if it was considered Mr Turvey’s further amended statement of claim remained deficient. I reserved costs on the basis that either party may apply for costs by memorandum.

[2]The third defendant (Mrs Turvey) has applied for costs.

[3] While to this point in time Mr Turvey has been self-represented, he has now instructed counsel. He opposes the making of an award of costs.

Submissions of the parties

[4] Mrs Turvey argues that she was the successful party as whilst Mr Turvey’s amended statement of claim was not expressly struck out, he was required to file a further pleading with the benefit of counsel, and his former pleading cannot be pursued.

[5] Counsel referred me to several findings throughout my judgment, noting deficiencies in the amended statement of claim and, it is said, due to the extent of those deficiencies, Mrs Turvey had no option but to apply for strike out.

[6] Mrs Turvey also argues that consistent with r 14.8 of the High Court Rules 2016, costs on an opposed interlocutory application must be fixed when the application is determined, and become payable when fixed, unless there are special reasons to the contrary. It is submitted that there are no special reasons here. Costs are sought on a 2B basis.

1 Turvey v Reeves [2022] NZHC 760.
2 The date for filing the amended statement of claim has since been extended.

[7] For completeness, I do not consider it necessary for present purposes to express any view on counsel’s submissions as to the course the proceeding may take following the amendment of Mr Turvey’s pleadings.

[8] Mr Turvey, who as I note is only latterly represented by counsel, opposes costs and says they should continue to be reserved. Three reasons are advanced.

[9] First, it is said that in my judgment I reserved costs in light of the possibility that Mrs Turvey may…

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 Turvey v Reeves

Details

AGLC: Turvey v Reeves [2022] NZHC 1184
Case: [2022] NZHC 1184
Decision Date: 26 May 2022

CaseChat Overview and Summary

The case of Turvey v Reeves, before Associate Judge Paulsen in the High Court of New Zealand, revolves around a costs application made by Patricia Turvey, the third defendant, against Daryn Turvey, the plaintiff. Patricia Turvey sought costs following an earlier decision by the court to dismiss her application for summary judgment but order the plaintiff to file a further amended statement of claim due to deficiencies in his original pleading. The court was required to determine whether Patricia Turvey was entitled to costs for her successful strike out application and, if so, the appropriate costs category and amount.

The court considered the principles governing costs awards, emphasizing that all matters of costs are discretionary but must be exercised on a principled basis. The court must take a realistic and holistic approach to the question of success, considering all circumstances, including what was sought to be achieved by the application and the positions taken by the parties. The court also noted that costs on an opposed interlocutory application should generally be fixed when the application is determined and become payable when they are fixed.

After reviewing the submissions of both parties, the court concluded that Patricia Turvey was successful in her application for strike out, as the plaintiff's amended statement of claim was deficient and could not support a trial. The court rejected the plaintiff's argument that he had a large measure of success in opposing the applications and that costs should continue to be reserved. The court also determined that the proceeding was a category 2 matter and that time allowances should be assessed on a band A basis, taking into account the unsuccessful arguments advanced by Patricia Turvey. The court further found that there were no circumstances requiring a departure from scale costs and that Patricia Turvey was entitled to recover the filing fee on her application.

The court ordered that there would be no costs awarded in relation to Patricia Turvey's application for summary judgment. However, in relation to her application for strike out, she was awarded costs and disbursements totaling $3,965.50. The court's decision provides guidance on the principles and considerations involved in determining costs in interlocutory applications and the appropriate costs category and amount in such cases.

Orders