Warin v Warin

[2019] NZHC 2875

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2016-485-293

[2019] NZHC 2875

BETWEEN

MARIAN RUTH WARIN and TREVOR SELWYN WARIN
First Plaintiffs

MARIAN RUTH WARIN and NIGEL TREVOR WARIN
Second Plaintiffs

MARIAN RUTH WARIN and NIGEL TREVOR WARIN
Third Plaintiffs

AND

COLLEEN ANNE WARIN

Defendant

On the papers:
Counsel:	M W Anderson for First Plaintiffs Defendant in person
Judgment:	5 November 2019

JUDGMENT OF CHURCHMAN J

(Costs)

[1]                   Following a defended summary judgment proceeding against the defendant, summary judgment in the sum of $177,470.63 was granted in favour of the first plaintiffs, together with interest and costs. A sale order on a Waiheke Island property owned by the defendant was subsequently issued on 3 August 2018.

[2]                   On 5 November 2018, the defendant filed an interlocutory application seeking to restrain the sale and advertising on the property, contending that it was owned by a trust and not her personally.

WARIN v WARIN (COSTS) [2019] NZHC 2875 [5 November 2019]

[3]                   On 23 September 2019, the first plaintiff discontinued her application for a sale order. Counsel explains that this was on the basis that it was uneconomic to pursue it, given that there were live bankruptcy proceedings against the defendant and the mortgagee had now issued Property Law Act notices against the defendant. In these circumstances, it was considered to be more economic for the first plaintiff to allow these mechanisms to play out rather than incur further legal costs.

[4]                   The first plaintiff now seeks costs against the defendant on a 2B basis in the amount of $4,780. This is opposed by the defendant, who instead seeks her own costs.

[5]                   Costs will generally go to the successful party.1 However, where a plaintiff discontinues a proceeding, he or she will be required to pay costs to the defendant unless the Court orders otherwise.2 This is a presumption, though, that may be displaced when it is just and equitable to do so,3 Toogood J recently highlighting the following points which emerge from case law:4

(a)The reasonableness of the parties’ stances will be taken into account; whether it was reasonable for the plaintiff to bring and continue the proceeding and whether it was reasonable for the defendant to oppose it. It is not sufficient for the plaintiff to show merely that it had reasonable grounds to believe it would be the successful party.

(b)Conduct prior to the commencement of the proceedings may be relevant.

(c)The Court will not consider the merits of the respective cases unless they are so obvious that they should influence the costs outcome.

(d)The reason for discontinuing the proceeding may be relevant. For example, there may have been a change of circumstance rendering continuation of the proceeding unnecessary.

1      High Court Rules, r 14.2(1)(a).

2      Rule 15.23.

3      Kroma Colour Prints Ltd v Tridonicatco NZ Ltd [2008] NZCA 150, (2008) 18 PRNZ 973 at [12].

4      Royal Forest and Bird Protection Society of New Zealand Inc v Northland Regional Council

[2019] NZHC 449 at [7].

[6] I have concluded that the first plaintiff has displaced the r 15.23 presumption against an award of costs, it being my view that the plaintiffs acted reasonably in first bringing and then discontinuing these proceedings, for the reasons given by counsel at [3].

[7]                   Accordingly, costs in the amount of $4,460, as per the attached schedule, are awarded in favour of the first plaintiff.

Scale costs: Schedule 2B – daily rate is $2,2305

Step	Description	Days	Total
59	Charging order without application	0.3	$669
61	Sale order	0.5	$1,115
23	Opposition to interlocutory application	0.6	$1,338
12	Appearance at Mentions Hearing 3 December 2018	0.2	$446
12	Appearance at Mentions Hearing 4 March 2019	0.2	$446
12	Appearance at Mentions Hearing 10 June 2019	0.2	$446
Total costs			$4,460

Churchman J

Solicitors:

Thomas Dewar Sziranyi Letts, Lower Hutt cc: Colleen Anne Warin

5      This was the daily rate, prior to 1 August 2019.