White v Allen - [2020] NZHC 819

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-2478

[2020] NZHC 819

BETWEEN
CAROLINE RUTH WHITE

Plaintiff

AND

RICHARD VIVIAN MARSH ALLEN

Defendant

Hearing: On the papers

Appearances:

Plaintiff in person

H M Twomey and N Faulkner for the Defendant

Judgment:

28 April 2020

INTERIM JUDGMENT OF GAULT J

(Costs)

This judgment was delivered by me on 28 April 2020 at 2:00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel / Parties:
The Plaintiff
Ms H M Twomey and Ms N Faulkner, Robertsons, Auckland

WHITE v ALLEN [2020] NZHC 819 [28 April 2020]

[1] In my judgment dated 24 October 2019 dismissing Ms White’s claim, I said that Mr Allen was entitled to costs.1 I provided for memoranda if costs could not be agreed and indicated I would deal with costs on the papers.

[2] A dispute arose between the parties as to whether costs have been agreed. In determining costs, it is appropriate to address first whether there is a binding agreement. Evidence has been filed by way of affidavit and the parties have agreed that the matter can be considered on the papers.

Were costs agreed?

[3] It is clear from Ms Bridgman’s affidavit that on 6 November 2019 Mr Allen’s solicitors wrote to Ms White’s solicitors setting out their position on costs and indicating that Mr Allen was prepared to agree a reduction in the costs he considers he will recover at Court if costs could be agreed swiftly between the parties and without the necessity for cost memoranda. They offered to accept $91,430.16 (inclusive of GST if any) on account of costs. They sought a response by 5 pm on 18 November 2019.

[4] No response was received within that timeframe but on 19 November 2019 Ms White’s then counsel, Mr Herzog, replied confirming that Ms White accepted the offer.

[5] Mr Allen’s solicitors replied the same day acknowledging Ms White’s acceptance of the offer, and indicating they required payment in full to be made within 10 working days. They followed up on 21 November 2019 attaching a draft joint memorandum.

[6] On 22 November 2019 Mr Herzog replied indicating that the offer was accepted and that the agreement was not in principle or subject to terms of payment still to be agreed.

1 White v Allen [2019] NZHC 2717 at [62].

[7] The plaintiff’s solicitors wrote again seeking a response in relation to payment terms. After three further follow-ups, Mr Herzog’s response was that “Ms White advises that the [Grafton Road Trust (GRT)] is refinancing and will be in a position to advise on [payment terms] when the Trust is advised by its bankers on the financing proposal”. After a further request for clarification, Mr Herzog advised that “Ms White advises that she is unable to provide a precise date in February 2020 when she proposes that the agreed costs in 2017-404-2078 will be paid”.

[8]…

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 White v Allen

Details

AGLC: White v Allen [2020] NZHC 819
Case: [2020] NZHC 819
Decision Date: 28 April 2020

CaseChat Overview and Summary

Caroline Ruth White, the plaintiff, and Richard Vivian Marsh Allen, the defendant, were involved in a legal dispute that ultimately reached the High Court of New Zealand in Auckland. The primary focus of the case was on the determination of costs associated with the litigation. The court was tasked with resolving whether the parties had reached an agreement on the costs and, if not, what the appropriate costs should be.

The legal issues at hand centered on whether there had been a binding agreement between the parties regarding the costs and, if so, what terms were integral to such an agreement. Specifically, the court had to determine if the absence of a definitive agreement on the payment terms could nullify the purported agreement on costs. Additionally, if no binding agreement existed, the court needed to assess the appropriate quantum of costs to be awarded to the defendant.

The court's reasoning began with an examination of the correspondence between the parties' solicitors. It was evident that Mr. Allen's solicitors had proposed a specific amount for costs and a timeline for acceptance. Although Ms. White's solicitors initially indicated acceptance, subsequent communications suggested that Ms. White required more time to arrange payment, which Mr. Allen's solicitors deemed unacceptable. The court concluded that the lack of agreement on the payment terms rendered the purported agreement on costs non-binding. The court further determined that an implied term regarding a reasonable time for payment was not sufficiently apparent to create a binding agreement. Therefore, the court proceeded to fix the costs, noting that Ms. White had not adequately addressed the quantum of costs in her submissions.

Ultimately, the court ordered that the plaintiff provide a brief memorandum addressing the costs to be fixed within five working days. The defendant was awarded costs on a specified basis, totaling $120,758.41, inclusive of disbursements. This judgment finalized the matter concerning the costs associated with the litigation between the parties.

Orders