Vallance v Vallance

[2016] NZHC 2435

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2013-409-001572 [2016] NZHC 2435

UNDER

the Property Law Act 2007

IN THE MATTER

of an application for a sale order pursuant to ss 339 to 343 of the Property Law Act

2007

BETWEEN

CLIVE CONWAY VALLANCE AND ROSS RAYMOND TEMPLETON AS TRUSTEES OF THE ESTATE OF ARNOLD RAYMOND VALLANCE Plaintiffs

AND

CHRISTOPHER JAMES VALLANCE Defendant

Hearing:	12 October 2016 (Costs determined on the papers)
Counsel:	P J Shamy for Plaintiffs J E Bayley for Defendant
Judgment:	12 October 2016

COSTS JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

[1]      As the issues arising between the plaintiffs and the defendant have been determined over the last two and a half years, costs have been reserved.  Now the plaintiffs apply for an order for costs on the proceeding, on a 2B basis, though with some consideration given to the success enjoyed by the defendant in relation to ownership of disputed chattels.  The plaintiffs maintain that it was necessary for the proceedings  to  be  brought  in  the  first  place,  and  that  apart  from  the  issue  of ownership of chattels they have enjoyed success throughout.   They also say that although  successful  in  his  argument  in  relation  to  ownership  of  chattels,  the defendant then used that success to take an unreasonable position in relation to the

impact of that ownership on occupation rent.

VALLANCE & TEMPLETON as trustees of the Estate of ARNOLD RAYMOND VALLANCE v VALLANCE [2016] NZHC 2435 [12 October 2016]

[2]      Counsel for the defendant says that viewed overall, both parties have enjoyed a measure of success, and that the Court should not focus closely on which party has succeeded on which issue, but should instead take a broad view of the case which would lead to a conclusion that costs should lie where they fall.   With more particularity counsel raises issues in relation to the position taken by the plaintiffs in relation to sale of the property, delays incurred by the unavailability of one witness for the plaintiffs, for cross-examination, and the position taken by the plaintiffs in relation to chattels which were ultimately found to belong to the defendant.

[3]      To reach a conclusion in relation to costs I have reread the judgments issued in this case, as well as the orders and minutes issued, to the extent that the latter dealt with matters other than purely administrative issues.  Although there is a superficial attraction in the defendant’s submission that costs should lie where they fall, because there have been so many disputes between the parties leading to a long and drawn- out resolution process, review of the results overall has led me to the view that it is just to make an award of costs in favour of the plaintiffs.  The only issue on which the  defendant  enjoyed  any  significant  measure  of  success  was  in  relation  to ownership of chattels in the house.  Having achieved that, however, he then sought to take what was in my view an unreasonable position in relation to how this would impact on occupation rent, the details of which are fully canvassed in the judgment dated 23 August 2016 and the preceding Minute dated 17 June 2016.  The Minute could,  and  in  my  view  should,  have  led  to  the  defendant  departing  from  his intractable position on how rent should be assessed, but this did not occur.

[4]      I take into account the fact that the plaintiffs are trustees who at all times owed a duty to administer the estate in accordance with law, and this included a need to have resolution of all issues between them and the defendant related to his ownership of part of the house in  which he resided, and  complicated issues in relation  to  ownership  of  chattels.    In  my opinion  the  trustees  were  justified  in bringing the proceeding.  Further, in my view it cannot be said that they have acted other than reasonably throughout.  Similarly the defendant has been entitled to take the points he has taken along the way, subject only to the comments I have made above in relation to his stance on occupation rent.

[5]      Overall, I conclude that the plaintiffs are entitled to costs on a 2B basis, as sought,  on  each  step  in  the proceeding.   The sum  arrived at,  however,  will  be discounted by 15 per cent to reflect the measure of success enjoyed by the defendant in relation to ownership of chattels.   In assessing this discount I have taken into account the probability that had the assessment of occupation rent been an isolated issue I would have awarded increased costs to the plaintiffs because of the unreasonable position adopted by the defendant.   In reviewing costs on an overall basis the appropriate way, in my view, to reflect that position is to allow a slightly lower discount to the defendant than would have been the case otherwise.

[6]      The defendant will also pay to the plaintiffs disbursements in a sum fixed, if necessary, by the Registrar if counsel are unable to agree.

[7]      Finally, I note an indication by Mr Bayley that in his view it may be difficult to assess costs on a 2B basis.  He says there is scope for dispute on exactly what the appropriate scale steps are.  The scale, however, is quite straightforward to apply and I doubt there will be any difficulty in assessing costs in accordance with this judgment.  However, if difficulty does arise in relation to isolating the steps to which the award of costs applies, the issue may be referred to me by memorandum for a

ruling.

J G Matthews

Associate Judge

Solicitors:

Hatherly Loughnan, Christchurch
Rhodes & Co, Christchurch