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, before the particulars were required to be provided. In doing so I expressly recorded that the basis for the plaintiffs’ allegations appeared thin, but nevertheless decided that in light of the history of the litigation between the parties that discovery and interrogatories ought to proceed first. I set out the reasons for that in paragraph [37], including:

…

(b)Whilst there will be work required for the defendant to respond to the discovery orders, and to answer the interrogatories, where there is a history of distrust it is better for the actual information to be provided. The dispute between the family must be brought to a close at some point, and if it is to be determined by the Court, it is best determined by consideration of the allegations on their merits with the relevant evidence available.

2      Chapman v Badon [2010] NZCA 613, (2010) 20 PRNZ 83 at [12].

[5]    Another way of describing the outcome of the interlocutory applications is to say that I gave the plaintiffs the benefit of the doubt so that they are able to proceed with their allegations on their merits, but against the distinct prospect that they might prove not to be well-founded. In those circumstances it was better that the dispute be determined on the merits, rather than at an interlocutory stage. But the plaintiffs were still benefitting from some degree of indulgence. This is why the merits of the ultimate litigation, and the merits of the interlocutory application became interlinked.

[6]    For those reasons I do not award the plaintiffs the costs and I determine that the costs of the interlocutory application will become costs in the cause, to be determined when the result of the litigation is known. In this way the costs of the argument will become costs in the ultimate determination of the proceedings in the same way the costs of the actual provision of the discovery, the answer to interrogatories, and the provisions of the particulars themselves will be.

[7]    I take the same attitude with respect to the costs of the aborted hearing before Grice J on 21 February 2019. Those costs were reserved. They will remain reserved, and are to be determined as costs in the cause in the ultimate determination of the costs of the proceedings.

Cooke J

Solicitors:

Nowland Gordon & Associates, Wellington for Plaintiffs Brandons, Wellington for Defendant