Wiggins v Wiggins - [2024] NZHC 1222

IN THE HIGH COURT OF NEW ZEALAND MASTERTON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKAORIORI ROHE

CIV-2023-435-003

[2024] NZHC 1222

IN THE MATTER OF the Hamerton Trust

BETWEEN

JENNIFER ANNE WIGGINS

Plaintiff

AND

IAN WIGGINS

Defendant

Hearing: On the papers

Appearances:

R Marsich for Plaintiff

D G Dewar for Defendant

Judgment:

16 May 2024

JUDGMENT OF CHURCHMAN J COSTS

Introduction

[1] On 19 April 2024 I dismissed an application by the plaintiff for an order pursuant to s 145(1)(b) of the Trusts Act 2019 referring the parties to mediation.1

[2] I invited the parties to settle costs between themselves and in the absence of an agreement within 14 days I directed the parties to file memoranda.

[3] The defendant did not comply with the 14 day time limit, only filing his memorandum on 10 May 2024 having only forwarded his proposed costs figure to the plaintiff on 9 May 2024.

1 Wiggins v Wiggins [2024] NZHC 863 [the Judgment].

WIGGINS v WIGGINS [2024] NZHC 1222 [16 May 2024]

Submissions

Applicant’s submissions

[4] Counsel for the defendant/applicant explains the delay in filing the memorandum as being a result of “pressure of other work”.

[5] The defendant’s memorandum also refers to the fact that discussion seeking to resolve overall resolution between parties had begun and that “in the meantime the defendant does wish to have the current costs issue determined.” The costs claimed by the defendant come to $12,308.50, calculated on a 2B basis.

[6] In addition to claiming costs for the interlocutory application, the defendant claims costs for the case management that occurred prior to the s 145 application being made into a formal interlocutory application. It is also submitted that a two day allowance for the affidavit evidence prepared should be made, with that work analogous to preparing originating application evidence.

Respondent’s submissions

[7] The plaintiff/respondent disagrees with the defendant’s costs figure and submits that a number of steps included in their figure are not claimable, and that the costs figure should instead be $3,737 calculated on a 1B basis.

[8] Counsel for the plaintiff argues costs on a 1B basis is appropriate as the application was straightforward and not factually or legally complex. He also states that the first and second items the defendant claims, namely for preparing and filing a memorandum and preparing a memorandum in response to the request for review, are not claimable for an interlocutory application as they concern matters that predate the setting down of the interlocutory application. The plaintiff further submits the attendance at a mentions hearing cannot be claimed as the defendant’s counsel did not appear at that hearing, and that the defendant cannot claim for preparing and filing affidavits for this type of application. The affidavits are said to not be lengthy or complex with only a limited number of attached exhibits.

[9] The plaintiff submits the defendants’ agreement to a 50/50 division of the Wiggins Group during the interlocutory application is relevant to costs. Counsel also refers to an…

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 Wiggins v Wiggins

Details

AGLC: Wiggins v Wiggins [2024] NZHC 1222
Case: [2024] NZHC 1222
Decision Date: 16 May 2024

CaseChat Overview and Summary

In Wiggins v Wiggins, the defendant Ian Wiggins sought costs against the plaintiff Jennifer Anne Wiggins for an interlocutory application made under the Trusts Act 2019. The plaintiff had previously sought an order to refer the parties to mediation, which Ian opposed. The primary issue before the court was to determine the appropriate costs for the interlocutory application, with Ian claiming costs of $12,308.50 calculated on a 2B basis. Jennifer contested this figure, arguing that costs should be calculated on a 1B basis, and that several claimed costs were not applicable.

The court considered the submissions from both parties and assessed whether the costs claimed by Ian were justified. The court found that the costs category and band should indeed be 2B, as the matter was not straightforward and required more detailed consideration than a category 1 matter. The court also found that certain costs claimed by Ian were legitimate, including those for preparing and filing the initial memorandum and a response to a request for review. However, some costs, such as those for a mentions hearing that Ian's counsel did not attend, were not claimable. The court further noted that the defendant's agreement to a 50/50 division of the Wiggins Group shares during the interlocutory application did not affect the costs calculation.

After evaluating the evidence and submissions, the court determined that a reduction of 10% was appropriate to account for Ian's late filing of his costs memorandum. Consequently, the total costs awarded to Ian were $6,345.45. The court left it to Ian to decide whether to enforce the costs immediately or await further negotiations.

Orders