Ward v Ward - [2020] NZHC 844

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2018-419-374

[2020] NZHC 844

UNDER the Wills Act 2007 and the Trustee Act 1957

BETWEEN

RUSSELL STUART WARD

Plaintiff

AND

CHRISTOPHER ALLAN WARD

First Defendant

DIANE LORRAINE JAMES

Second Defendant

CIV-2019-419-81

BETWEEN

CHRISTOPHER ALLAN WARD and DIANE LORRAINE JAMES

Plaintiffs

AND

RUSSELL STUART WARD

Defendant

Hearing: On the papers

Appearances:

Plaintiff in CIV-2018-419-374 and Defendant in CIV-2019-419-81 in person

Mr K I Bond and A M Kalinowski for the Defendants in CIV-2018-419-374 and Plaintiffs in CIV-2019-410-81

Judgment:

30 April 2020

JUDGMENT OF GAULT J

(Costs)

This judgment was delivered by me on 30 April 2020 at 11:00 am pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………

WARD v WARD and JAMES [2020] NZHC 844 [30 April 2020]

[1] In my judgment of 14 January 2020,1 I indicated that Allan and Diane are entitled to costs in relation to Russell’s summary judgment application and their summary judgment application, and that no costs would be awarded in relation to the two strike out applications. The security for costs application was deferred and costs reserved. I timetabled the filing of memoranda, and indicated in my memorandum of 23 March 2020 that I would deal with costs on the papers.

[2]Allan and Diane seek costs on the two summary judgment applications of

$19,717.50 on the basis of a 50 per cent uplift from 2B scale costs. Increased costs are sought on the grounds that Russell contributed unnecessarily to the time and expense of the proceeding by failing to comply with the High Court Rules 2016 and directions, and by pursuing arguments that lacked merit and failing to accept arguments.

[3] Russell opposes any award of costs on the basis that an award of costs is judicial discrimination, in breach of the New Zealand Bill of Rights Act 1990 (NZBORA) and international human rights conventions, as a lay litigant cannot claim costs. He submits that this makes my judgment a nullity and void ab initio, and that the High Court Rules are also void if applied to a lay litigant.

Discussion

[4] Russell objects to an award of costs against him on the basis that a lay litigant cannot claim costs. The Supreme Court has recently confirmed that there is a primary rule, required to be applied unless legislatively altered, that a successful litigant in person is entitled to recover disbursements but not costs.2 The law is not settled as to whether this primary rule may be departed from in “exceptional circumstances”.3 The possibility of an exceptional circumstances exception and its application do not arise in this case because the issue is whether Allan and Diane can recover costs, not Russell. Whether they can recover costs in this case depends on the application of normal cost rules and principles binding on this Court irrespective of whether Russell

1 Ward v Ward [2020] NZHC 11. As in the judgment, I will refer to…

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 Ward v Ward

Details

AGLC: Ward v Ward [2020] NZHC 844
Case: [2020] NZHC 844
Decision Date: 30 April 2020

CaseChat Overview and Summary

In the High Court of New Zealand, a dispute arose between Russell Stuart Ward, Christopher Allan Ward, and Diane Lorraine James concerning a will and the property it was intended to distribute. The case was heard on the papers, with the plaintiffs, Allan and Diane, seeking costs for the defendants' unsuccessful summary judgment applications. The legal issues before the court were whether Allan and Diane were entitled to costs for the unsuccessful applications and whether the award of costs would be considered judicial discrimination against Russell as a lay litigant. The court found that the primary rule that a successful litigant in person is entitled to recover disbursements but not costs does not apply in this case. Instead, the court applied normal cost rules and principles, finding that Allan and Diane were entitled to 2B scale costs of $13,145 for the unsuccessful summary judgment application by Russell. However, the court did not consider that increased costs should be awarded for Allan and Diane's successful application for summary judgment, as Russell did not act unreasonably in opposing it.

The court's reasoning was based on the principle that costs follow the event, and a party who fails in a proceeding or interlocutory application should pay costs to the party who succeeds. However, in the case of a plaintiff's unsuccessful application for summary judgment, costs are usually reserved, except in exceptional cases involving abuse of the summary judgment procedure. The court found that Russell's application for summary judgment was not suitable due to legal and evidential difficulties, and he failed to act reasonably in pursuing it. Therefore, an award of costs was justified. However, the court did not consider that increased costs should be awarded in relation to Allan and Diane's successful application for summary judgment, as Russell did not act unreasonably in opposing it. The court's decision was based on the principles of normal cost rules and principles, and there were no issues of judicial discrimination, breach of the New Zealand Bill of Rights Act 1990, or breach of international conventions.

Orders