Young v Young - [2021] NZHC 369

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-1079

[2021] NZHC 369

UNDER the Property Law Act 2007

BETWEEN

ELLA VICTORIA YOUNG

Plaintiff

AND

SHANE MATIU YOUNG

First Defendant

JINA KIM

Second Defendant

CIV-2019-404-2029

UNDER

the Property (Relationships) Act 1976

BETWEEN

JINA KIM

Plaintiff

AND

SHANE MATIU YOUNG

First Defendant

ELLA VICTORIA YOUNG

Second Defendant

Hearing: On the papers

Appearances:

R G Evans for Ella Young

B N Snedden for Shane Young A G Rowe for Jina Kim

Judgment:

4 March 2021

JUDGMENT OF GORDON J

This judgment was delivered by me on 4 March 2021 at 10 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

YOUNG v YOUNG [2021] NZHC 369 [4 March 2021]

Introduction

[1] This is an application by Ella Young for costs following my judgment of 19 November 2020.1 That judgment determined two separate, but related, proceedings. Both proceedings concerned a residential property (the property) held by Mrs Young and her son, Shane Young, as joint tenants.

[2] In proceeding CIV-2019-404-2029, Jina Kim, Shane’s former wife, claimed Shane’s half-share in the property was relationship property under the Property (Relationships) Act 1976 and should be divided equally between the two of them. The proceeding was transferred to this Court from the Family Court. Mrs Young was joined as a party prior to the transfer to this Court. Mrs Young and Shane defended this proceeding.2

[3] In proceeding CIV-2019-404-1709 (brought as a consequence of Ms Kim’s claim in the proceeding commenced in the Family Court), Mrs Young argued she was the beneficial owner of all of the property. She sought an order under s 339(1)(b) of the Property Law Act 2007 vesting the entire property in her. She also sought an order under s 142 of the Land Transfer Act 2017 for removal of a Notice of Claim registered by Ms Kim. Shane supported his mother’s case.3

[4] I found for Mrs Young in both proceedings. I granted the orders she sought and dismissed Ms Kim’s Property (Relationships) Act claim, save for an order by consent under s 33(c) vesting specified items in Shane and Ms Kim under their names as separate property.4

1      Young v Young [2020] NZHC 3054.
2 At [7].
3      At [2]–[6].
4      At [92] and [93].

Costs claimed and submissions

Applicant submissions

[5] As the successful party in both proceedings, Mrs Young seeks costs against Ms Kim.5

[6] In respect of the Property Law Act proceeding, Mrs Young seeks costs against Ms Kim on a 2B basis in the sum of $44,329.00. No security for costs was available to Mrs Young.6 Mrs Evans for Mrs Young submits the schedule attached to Mrs Young’s costs memorandum reflects the complexity and significance of the work performed.7 Counsel further submits no issue has been taken by counsel for Ms Kim regarding this schedule.

[7]A copy of the schedule is annexed to this judgment.8

[8] Because the two proceedings were for…

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 Young v Young

Details

AGLC: Young v Young [2021] NZHC 369
Case: [2021] NZHC 369
Decision Date: 4 March 2021

CaseChat Overview and Summary

Ella Victoria Young applied for costs following a decision by Gordon J in which he found in her favour in two proceedings concerning a residential property held by Ella and her son, Shane Young, as joint tenants. In the first proceeding, Jina Kim, Shane's former wife, claimed that Shane's half-share in the property was relationship property under the Property (Relationships) Act 1976 and should be divided equally between the two of them. In the second proceeding, Ella argued that she was the beneficial owner of all of the property and sought an order under s 339(1)(b) of the Property Law Act 2007 vesting the entire property in her. She also sought an order under s 142 of the Land Transfer Act 2017 for removal of a Notice of Claim registered by Ms Kim. Gordon J found for Ella in both proceedings, granting the orders she sought and dismissing Ms Kim's Property (Relationships) Act claim.

Ella sought costs against Ms Kim in both proceedings, claiming that the schedule attached to her costs memorandum reflected the complexity and significance of the work performed. In respect of the Property Law Act proceeding, Ella sought costs in the sum of $44,329.00. In respect of the Property (Relationships) Act proceeding, Ella sought costs in the sum of $5,516.00, reflecting the legal aid costs she must reimburse to the Ministry of Justice Legal Aid Department for Family Court attendances predating the removal of the proceeding to the High Court. Ms Kim submitted that she had no means to pay costs, as her debts greatly exceeded her assets. The court noted that financial hardship is not an answer to a claim for costs. Costs must be at a meaningful level, even against an impecunious party. Abatement of costs because of personal circumstances is exceptional.

The court assessed the costs claimed by Ella and found that the schedule accurately reflected the steps her counsel had taken in the Property Law Act proceeding but for one item. The court disallowed the claim under item 28 ($712.00) because counsel had appeared at a two-day hearing. The court also noted an arithmetic error in Ella's schedule, correcting the claimed figure for disclosure of documents from $4,780.00 to $5,975.00. Factoring in these adjustments, the correct quantum of costs and disbursements in respect of the Property Law Act proceeding was the sum of $40,027.00. The court awarded Ella costs in the sum of $5,516.00 in respect of the Property (Relationships) Act proceeding. The court did not award costs for the preparation and filing of Ella's costs memorandum, as the courts do not usually award costs on costs applications. The court made an order awarding costs in favour of Ella in the sum of $45,543.00, being the total of $40,027.00 in the Property Law Act proceeding and $5,516.00 in the relationship property proceeding.

Orders