VICTORIA MARGARET MCEVEDY AND MICHAEL THOMAS MCEVEDY AND MICHAEL THOMAS MCEVEDY and BENJAMIN WILLIAM MCALPINE TOTHILL s AND CATHERINE MCEVEDY and ALEXANDRA RUTHERFORD s AND BENJAMIN WILLIAM MCALPINE TOTHILL AND THE... - [2024] NZHC 2902

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-409-583

[2024] NZHC 2902

BETWEEN
VICTORIA MARGARET MCEVEDY

Plaintiff

AND

MICHAEL THOMAS MCEVEDY

First Defendant

AND

MICHAEL THOMAS MCEVEDY and BENJAMIN WILLIAM MCALPINE TOTHILL

Second Defendants

AND

CATHERINE MCEVEDY and ALEXANDRA RUTHERFORD

Third Defendants

AND

BENJAMIN WILLIAM MCALPINE TOTHILL

Fourth Defendant

AND

THE PARTNERSHIP OF DUNCAN COTTERILL

Fifth Defendant

Hearing: On the papers

Counsel:

M D Arthur for the Plaintiff

G J Ryan for the First and Third Defendants

A Gaborieau for the Second and Fourth Defendants P McKinnon for the Fifth Defendant

Judgment:

7 October 2024

JUDGMENT OF HARLAND J

(as to costs associated with application under r 11.10 (slip rule) by defendants)

MCEVEDY v MCEVEDY [2024] NZHC 2902 [7 October 2024]

Introduction

[1] The defendants were unsuccessful in their application under r 11.10 (the slip rule) of the High Court Rules 2016 (the Rules) to correct [83] of my decision in McEvedy v McEvedy1 (the slip rule judgment).2 The plaintiff now applies for costs and disbursements of $5,162 under r 14.2(1)(a) of the Rules.

[2] I have decided to allow the plaintiff’s application for costs. This judgment sets out my reasons for doing so.

The slip rule judgment

[3]On 21 December 2023, I issued a judgment determining:

(a) an application by the defendants for security for costs against the plaintiff; and

(b) an application by the plaintiff for preservation orders in relation to a family trust.

[4] I granted the security for costs application and rejected the preservation order application. In determining the preservation order application, I stated the following:3

[83] Further, I am satisfied that the first defendant is taking a responsible approach to these proceedings. He has advised the Court, via his counsel, that he will not be drawing on his loan in the meantime until these proceedings are resolved but, further, the amount of the loan concerned, contrary to the plaintiff’s contention, will not completely dissipate the Trust fund even if it was to be drawn down.

(emphasis added).

[5] Prior to determining the slip rule application, I obtained the Court transcript of the part of the hearing relevant to the issue highlighted in [83] of my judgment. I referred to this in the slip rule judgment. The relevant portion of the transcript is as follows:4

1      McEvedy v McEvedy [2023] NZHC 3875.
2      McEvedy v McEvedy [2024] NZHC 2314 [Slip rule judgment].
3      McEvedy v McEvedy, above n 1.
4 Slip rule judgment, above n 2, at [28].

A. … Now in relation to the loan, the debt owing back to Mr McEvedy, that is recorded there under non-current liabilities, settlors advance MT McEvedy 233,960 and you’ll see in the previous year your Honour that it was 287,585 and if we went back through previous accounts and I won’t do that unless your Honour wants me to, but if we went back through previous accounts, we would see that there is a gradual reduction in…

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.

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Details

AGLC: VICTORIA MARGARET MCEVEDY AND MICHAEL THOMAS MCEVEDY AND MICHAEL THOMAS MCEVEDY and BENJAMIN WILLIAM MCALPINE TOTHILL s AND CATHERINE MCEVEDY and ALEXANDRA RUTHERFORD s AND BENJAMIN WILLIAM MCALPINE TOTHILL AND THE... [2024] NZHC 2902
Case: [2024] NZHC 2902
Decision Date: 7 October 2024

CaseChat Overview and Summary

The High Court of New Zealand considered an application for costs by the plaintiff, Victoria Margaret McEvedy, following a prior decision regarding an application for security for costs and preservation orders. The defendants, Michael Thomas McEvedy and others, had sought to correct a perceived error in the court's judgment under the slip rule, which was ultimately denied. The plaintiff then applied for costs and disbursements amounting to $5,162 under the High Court Rules 2016.

The court examined whether the slip rule could be applied to amend the reasons for the judgment, ultimately concluding that the slip rule did not permit changes to the reasons of the judgment. The court emphasized that the slip rule is intended to correct clerical mistakes or errors from accidental slips or omissions but does not extend to modifying the reasons for the judgment. The court also noted that altering the reasons could modify the effect of the judgment, which is impermissible.

In deciding the costs application, the court found that costs should follow the event, meaning the prevailing party should be awarded costs. While the plaintiff had also sought to amend the contested paragraph, her application for costs was conditional on the court finding that an amendment was appropriate. The defendants opposed the costs application, arguing that the costs should lie where they fall, but the court rejected this submission. The court found that the costs and disbursements sought by the plaintiff were reasonable and granted the application accordingly.

The court ordered the defendants to pay the plaintiff $5,019 in costs and $143 in disbursements. This decision reinforces the principle that costs should follow the event and that the slip rule does not extend to altering the reasons for a judgment.

Orders