Williams v Scott - [2019] NZHC 935

REDACTED VERSION OF JUDGMENT SUITABLE FOR PUBLICATION

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2014-404-002105

[2019] NZHC 935

BETWEEN
WILLIAMS

Appellant

AND

SCOTT

Respondent

Hearing: 16 November 2018

Appearances:

S L Robertson QC for the Appellant

S Ambler and E Graddon for the Respondent

Judgment:

30 April 2019

JUDGMENT OF HINTON J

This judgment was delivered by me on 30 April 2019 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Counsel:
Suzanne Robertson, QC, Auckland Stephanie Ambler, Barrister, Auckland

WILLIAMS v SCOTT [2019] NZHC 935 [30 April 2019]

[1] In proceedings under the Property (Relationships) Act 1976 and in regard to final maintenance, Judge McHardy ordered Mr Williams to pay costs to Ms Scott of
$278,731.20 (plus a small amount of interest) and disbursements of $105,568.64.1 The
costs were awarded on a category 3C basis, with the exception of costs for the final maintenance proceeding, which were based on category 2B.2 Materially, the costs also included a 60 per cent uplift.

[2] This is the appeal of that decision. While the relevant decision was dated 15 August 2014, it was formally stayed pending the outcome of the substantive appeals which culminated in a decision of the Supreme Court dated 11 December 2017.3

Uplift for unreasonable refusal of offer

[3] The key point on appeal is whether the Family Court Judge was right to award increased costs (60 per cent uplift) on the basis that Ms Scott made an offer by letter dated 10 October 2007 that “was reasonable and capable of acceptance” and that “deserved much more serious consideration than it was given by Mr Williams”.

[4] Ms Robertson, QC for Mr Williams says that the 60 per cent uplift cannot stand, inter alia in light of the findings in the High Court and the Supreme Court that Mr Williams’ “refusal to sell” Property 1 was not unreasonable in light of the conditions attached to the offer by Ms Scott.4 [REFER NOTE]

[5] I find, for somewhat wider reasons (which were canvassed during the hearing), that the 10 October 2007 letter was not an offer capable of acceptance, nor would a solicitor acting reasonably have advised their client to accept it at the time. This latter

1      Williams v Scott [2014] NZFC 4347.
2      The Family Court Judge also ordered that costs in regard to interim maintenance should lie where they fall.
3      Scott v Williams [2017] NZSC 185, [2018] 1 NZLR 507.
4      Williams v Scott [2014] NZHC 2547, [2015] NZFLR 355 at [179]; Scott v Williams [2017] NZSC 185, [2018] 1 NZLR 507 [62] per Glazebrook J.

NOTE: Real names have not been used in this judgment. The two properties at issue are both in Remuera. To make the anonymised version of this judgment vaguely readable, I refer to them as Property 1 and Property 2. It has also been necessary to remove the letter that…

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 Williams v Scott

Details

AGLC: Williams v Scott [2019] NZHC 935
Case: [2019] NZHC 935
Decision Date: 30 April 2019

CaseChat Overview and Summary

The appeal in Williams v Scott was heard by Hinton J in the High Court of New Zealand. The appeal concerned a decision by Judge McHardy in the Family Court, which ordered Mr Williams to pay Ms Scott $278,731.20 in costs, plus interest and disbursements of $105,568.64. The key issue on appeal was whether the Family Court Judge was correct in awarding a 60% uplift in costs on the basis that Ms Scott's offer dated 10 October 2007 was reasonable and capable of acceptance, and deserved more serious consideration than it was given by Mr Williams. Ms Robertson, QC for Mr Williams, argued that the 60% uplift could not stand, inter alia, in light of the findings in the High Court and the Supreme Court that Mr Williams’ refusal to sell Property 1 was not unreasonable in light of the conditions attached to the offer by Ms Scott. Hinton J found that the 10 October 2007 letter was not an offer capable of acceptance, nor would a solicitor acting reasonably have advised their client to accept it at the time. The court held that the relevant rule did not allow for extra costs for unreasonable negotiation, and the offer was too uncertain to be fairly capable of acceptance. The court also found that even if there were an offer capable of acceptance for purposes of the relevant rule, it was not unreasonable to refuse it as at October 2007. The appeal was allowed insofar as there is to be no uplift on scale costs, but the appeal was otherwise dismissed. The appellant has been substantially successful, but the court's tentative view is that there should be no award of costs in respect of this appeal.

Orders