Watts v Austin - [2024] NZHC 1446

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2024-485-23

[2024] NZHC 1446

UNDER the Property Law Act 2006

IN THE MATTER OF

an application for orders under s 339

BETWEEN

BRADLEY TALOR WATTS

Applicant

AND

SOPHIE MARIE CATHERINE AUSTIN

Respondent

On the papers

Counsel:

M R C Wolff for the Applicant R N Zwaan for the Respondent

Judgment:

31 May 2024

JUDGMENT OF McHERRON J

(Costs)

Background

[1] On 11 April 2024, by consent, I made orders for the sale and division of a residential property owned by Bradley Watts and Sophie Austin, in accordance with a joint memorandum of counsel dated 9 April 2024.1 In their memorandum, the parties advised that the basis for the proceeding was now resolved upon the sealing of the orders by consent. Accordingly, I noted in my minute that once that step has occurred, the proceeding could be regarded as having concluded. The parties did not ask me to, nor did I, reserve costs for a later decision.

1 Watts v Austin HC Wellington CIV-2024-485-23, 11 April 2024 (Minute of McHerron J).

WATTS v AUSTIN [2024] NZHC 1446 [31 May 2024]

[2]In summary, the orders I made by consent were:

(a)to authorise professional marketing and sale of the property at an agreed price of $1,090,000 or higher;

(b)to authorise Mr Watts to sign documents necessary to effect the marketing, sale and transfer of the property;

(c)that both parties are required to co-operate with, and refrain from taking steps which may jeopardise, the sale and implementation of the agreed orders;

(d)the net sale proceeds of sale are to be paid in equal shares to the parties, after:

(i)deduction of real estate agent’s commission and reasonable conveyancing costs;

(ii)payment of “interim compensation” to Mr Watts of $1,106.39 for money owed to him in respect of “Property matters and joint accounts”, plus $10,372.86 for mortgage instalments missed by Ms Austin in respect of the property to date and any further missed mortgage payments of $1,728.81 per week (or a pro-rata of any part week) which have been paid by Mr Watts after 4 March 2024 and until the date the mortgage is discharged;

(iii)deduction of $30,000 representing the amount in dispute between the parties regarding other mortgage payments and personal property matters which will be dealt with separately to the sale of the property. This sum is to be held in Mr Watts’ solicitor’s trust account and will remain there until the parties reach agreement, or until an order of a Court or Tribunal is made in respect of the outstanding issues.

[3] Finally, the consent orders specify that “For the avoidance of doubt, this interim compensation does not limit, or restrict, any claim [Mr Austin] may otherwise make in relation to division of the balance of the net sale proceeds.”

[4] The sealed orders were sent to counsel together with my minute on 11 April 2024.

Mr Watts’ costs application

[5] On 2 May 2024, counsel…

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 Watts v Austin

Details

AGLC: Watts v Austin [2024] NZHC 1446
Case: [2024] NZHC 1446
Decision Date: 31 May 2024

CaseChat Overview and Summary

The case of Watts v Austin involves a dispute between Bradley Watts and Sophie Austin over the sale and division of a residential property they co-owned. The matter was heard in the High Court of New Zealand, Wellington Registry. The primary issue before the court was whether Mr Watts, the applicant, should be awarded costs despite the proceeding being resolved by consent. Mr Watts sought costs amounting to $10,061, arguing that he was the successful party as he had achieved his desired outcome by consent, and sought an uplift due to alleged delays by Ms Austin. Ms Austin opposed the costs application, relying on her status as a legally aided person under the Legal Services Act 2011, which generally exempts such individuals from liability for costs.

The court, McHerron J, exercised its discretion under the High Court Rules 2016, considering various factors in declining the costs application. Firstly, the court noted that Mr Watts had not sought costs in the initial consent orders presented to Ms Austin, which she had agreed to, and the reference to costs was removed after she pointed out her ineligibility for costs as a legally aided person. Secondly, the court found that Ms Austin did not unreasonably delay the proceedings, as she did not oppose the consent orders. The court also dismissed Mr Watts' argument that Ms Austin should be liable for costs during the period before she became legally aided, noting that she had applied for legal aid before the proceeding was filed and that Mr Watts was aware of her eligibility from the outset. Additionally, the court did not consider the delays to be exceptional, given the relatively short period of negotiation and Ms Austin's personal circumstances.

In conclusion, McHerron J decided not to award costs to Mr Watts, emphasizing the collaborative resolution achieved by the parties and the principle that both parties could be seen as having succeeded in the litigation. The court preferred to view the matter as a joint success rather than a case of one party prevailing over the other. The final outcome was that no costs were awarded to Mr Watts.

Orders