Woolf v Kaye - [2018] NZHC 3426

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2015-404-1043

[2018] NZHC 3426

BETWEEN
VIRGINIA WOOLF

First Plaintiff

VIRGINIA WOOLF as Executor of the Estate of Noel Bernard Woolf

Second Plaintiff

AND

ALWYN BERNARD KAYE (previously known as ALWYN BERNARD WOOLF

First Defendant

MARK WILLIAM SYDNEY CLARK as

Executor of the Estate of Violet Isabel Woolf Second Defendant

Hearing: On the papers

Appearances:

G A Keene for the Plaintiffs

A Gilchrist and C Fry for the Defendants

Judgment:

20 December 2018

JUDGMENT OF GORDON J

[Costs on stay application]

This judgment was delivered by me
on 20 December 2018 at 11 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors: Foy Halse, Auckland
Richard Wood, Auckland

Counsel:G A Keene, Auckland A Gilchrist, Auckland

WOOLF v KAYE [2018] NZHC 3426 [20 December 2018]

Introduction

[1] On 24 August 2018, I gave judgment in favour of the first defendant, Mr Kaye, against his sister, the first plaintiff, Ms Woolf.1 I made a range of orders relating to a property in which Ms Woolf lives and of which Mr Kaye is the sole registered proprietor.2

[2] On 13 November 2018, I granted Ms Woolf an order staying execution of several of the orders made in my substantive judgment pending her appeal of that judgment to the Court of Appeal.3

[3] I expressed a preliminary view that Ms Woolf was entitled to costs on her stay application.4 I held that costs on the application should be determined at this stage, not reserved pending the outcome of Ms Woolf’s appeal.5

[4] The parties have been unable to come to an agreement on costs. They have each filed separate memoranda.

Principles

[5] Costs are at the discretion of this Court.6 The High Court Rules (the Rules) provide guidance as to how that discretion might be exercised.7

[6] The general principle is that the party who fails with respect to a proceeding should pay costs to the successful party.8 The successful party should be awarded costs on a scale basis.9 But when applying the scale costs regime, the court must consider each formal step individually for the purposes of assessing the appropriate time band. A blanket approach is not appropriate.10

1      Woolf v Kaye [2018] NZHC 2191.
2 At [381].
3      Woolf v Kaye [2018] NZHC 2940.
4 At [65].
5 At [64].
6      High Court Rules, r 14.1(1).
7      Rules 14.2-14.7.
8      Rule 14.2(1)(a).
9      Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [8].
10     Paper Reclaim Ltd v Aotearoa International Ltd [2007] NZCA 544 at [35].

[7] Ultimately, the overriding consideration when exercising the discretion to award costs is that any award ought to do justice between the parties.11

Submissions

[8]Mr Keene, on behalf of Ms Woolf, seeks costs on a 2B basis in the sum of

$6,690. I set out the claimed costs in Annexure A to this judgment.

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 Woolf v Kaye

Details

AGLC: Woolf v Kaye [2018] NZHC 3426
Case: [2018] NZHC 3426
Decision Date: 20 December 2018

CaseChat Overview and Summary

The case of Woolf v Kaye involved a dispute between the first plaintiff, Virginia Woolf, and the first defendant, Alwyn Bernard Kaye. The primary issue revolved around property ownership and rights of occupation, with Virginia Woolf seeking to stay the execution of several orders pending her appeal of the substantive judgment. The court was required to determine the appropriate costs to be awarded to Virginia Woolf for her stay application. The legal issues centred on whether the costs should be assessed on a scale basis and whether there was a basis for increased costs due to the defendant's refusal to accept a settlement offer.

The court held that the costs should be assessed on a scale basis, considering each formal step individually. The court disallowed the plaintiff's claims for a second affidavit and reply submissions, as they were considered redundant. Regarding increased costs, the court found that the defendant had not acted unreasonably in rejecting the settlement offer, as it would have resulted in a financial loss given the circumstances at the time. Therefore, the court declined to order increased costs.

In conclusion, the court awarded Virginia Woolf costs of $5,575 for the stay application. The enforcement of this judgment was stayed pending the outcome of her appeal to the Court of Appeal. The court did not make any order for costs on the costs application itself. The detailed breakdown of the awarded costs is provided in Annexure B of the judgment.

Orders