Winton v Winton - [2019] NZHC 1832

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2016-485-419

[2019] NZHC 1832

IN THE MATTER of a claim for damages for breach of contract

BETWEEN

JAMES ANDREW WINTON, VICTORIA HOLLY LIBERTY WINTON AND JAMES HARRIS SAMUEL WINTON

Plaintiffs

AND

VIRGINIA RUTH WINTON as executor of the estate of RACHEL MAY WINTON Defendant

Hearing: 5 July 2019

Appearances:

J D Haig for Plaintiffs

C S Chapman for Defendant

Judgment:

31 July 2019

JUDGMENT OF COOKE J

(Costs)

[1] By judgment dated 19 June 2019 I granted the plaintiffs’ application requiring the defendant provide particular discovery, and to answer interrogatories, following which the plaintiffs were to provide confirmation that they were proceeding with particular allegations, and then provide particulars of those allegations.1 In relation to costs I indicated as follows:

[45] In relation to costs, normally the plaintiffs would be entitled to them as they have succeeded on the argument before me. My preliminary view is that the circumstances I should not make a costs award in the plaintiffs’ favour on this application at this stage. I propose to reserve the question of costs so that they are to be treated as costs in the cause. If the plaintiffs demonstrate that the disputed allegation has substance, they should be entitled to costs. But

1 Winton v Winton [2019] NZHC 1394.

WINTON v WINTON as executor of the estate of RACHEL MAY WINTON [2019] NZHC 1832 [31 July 2019]

if it transpires that the allegation has no basis, then it seems to me that the cost of the present argument should be borne by the plaintiffs. If the plaintiffs nevertheless seek a costs award they should file a memorandum within five working days (10 page maximum) with any reply five working days after (10 page maximum).

[2] On 27 June 2019 I received a memorandum from counsel for the plaintiffs seeking costs. This was responded to by a memorandum from counsel for the defendant dated 3 July 2019. A memorandum of counsel for the plaintiffs in reply dated 5 July 2019 was also filed. In short the plaintiffs seek an award of costs on the applications. The defendant supports the view provisionally formed by the Court, and she also seeks costs of the aborted 22 February 2019 hearing.

[3] The plaintiffs rely on r 14.8(1) that, unless there are “special reasons to the contrary” costs of interlocutory applications must be fixed when the application is determined.

[4] In the present case, and notwithstanding the submissions by the plaintiffs, I conclude that there are such special reasons. The rationale of this rule is that “… the merits of particular applications and the merits of the substantive proceedings are different matters”.2 In the present case, however, that is not so. In determining the ultimate outcome of the interlocutory applications before the Court, I decided on balance that it was better to require the defendant to provide the specific discovery, and to answer the interrogatories,…

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 Winton v Winton

Details

AGLC: Winton v Winton [2019] NZHC 1832
Case: [2019] NZHC 1832
Decision Date: 31 July 2019

CaseChat Overview and Summary

In this case, the plaintiffs, James Andrew Winton, Victoria Holly Liberty Winton, and James Harris Samuel Winton, brought a claim against the defendant, Virginia Ruth Winton, as the executor of the estate of Rachel May Winton, for damages for breach of contract. The dispute arose out of complex family litigation, which had previously been before the court. The primary issue before the High Court of New Zealand was whether the plaintiffs were entitled to an award of costs for the interlocutory applications they had made, which the court had previously granted in their favour. The plaintiffs argued that the rule requiring the award of costs for interlocutory applications should apply, unless there were special reasons to the contrary. The defendant, on the other hand, contended that the special circumstances of the case warranted a departure from the usual rule.

The court considered the rationale behind the rule that costs of interlocutory applications must be fixed when the application is determined. The court recognised that, in most cases, the merits of particular applications and the merits of the substantive proceedings are different matters. However, in this case, the merits of the interlocutory applications and the ultimate outcome of the litigation were interlinked due to the history of distrust between the parties and the need to bring the dispute to a close. The court concluded that, in light of the circumstances, it was better to require the defendant to provide specific discovery and answer interrogatories before the particulars were required to be provided. The court gave the plaintiffs the benefit of the doubt to allow them to proceed with their allegations on their merits, but with the distinct prospect that they might not be well-founded. Therefore, the court decided that there were special reasons to depart from the usual rule and did not award the plaintiffs the costs for the interlocutory applications.

In light of the above, the court determined that the costs of the interlocutory applications would become costs in the cause, to be determined when the result of the litigation was known. The court took the same approach with respect to the costs of the aborted hearing before another judge, which were also reserved and would be determined as costs in the cause in the ultimate determination of the proceedings. This decision ensured that the costs of the argument would become costs in the ultimate determination of the proceedings, in the same way as the costs of the actual provision of the discovery, the answers to interrogatories, and the provisions of the particulars themselves. The costs of the interlocutory applications and the aborted hearing would be determined at the same time as the overall costs of the litigation, providing a fair and balanced outcome for both parties.

Orders