VALLANCE & TEMPLETON as trustees of the Estate of ARNOLD RAYMOND VALLANCE v VALLANCE [2016] NZHC 2435

VALLANCE & TEMPLETON as trustees of the Estate of ARNOLD RAYMOND VALLANCE v VALLANCE [2016] NZHC 2435 [12 October 2016]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCIV-2013-409-001572[2016] NZHC 2435UNDER the Property Law Act 2007IN THE MATTER of an application for a sale order pursuantto ss 339 to 343 of the Property Law Act2007BETWEEN CLIVE CONWAY VALLANCE ANDROSS RAYMOND TEMPLETON ASTRUSTEES OF THE ESTATE OFARNOLD RAYMOND VALLANCEPlaintiffsAND CHRISTOPHER JAMES VALLANCEDefendantHearing: 12 October 2016 (Costs determined on the papers)Counsel: P J Shamy for PlaintiffsJ E Bayley for DefendantJudgment: 12 October 2016COSTS JUDGMENT OF ASSOCIATE JUDGE MATTHEWS[1] As the issues arising between the plaintiffs and the defendant have been determined over the last two and a half years, costs have been reserved. Now the plaintiffs apply for an order for costs on the proceeding, on a 2B basis, though with some consideration given to the success enjoyed by the defendant in relation to ownership of disputed chattels. The plaintiffs maintain that it was necessary for the proceedings to be brought in the first place, and that apart from the issue of ownership of chattels they have enjoyed success throughout. They also say that although successful in his argument in relation to ownership of chattels, the defendant then used that success to take an unreasonable position in relation to the impact of that ownership on occupation rent.[2] Counsel for the defendant says that viewed overall, both parties have enjoyed a measure of success, and that the Court should not focus closely on which party has succeeded on which issue, but should instead take a broad view of the case which would lead to a conclusion that costs should lie where they fall. With more particularity counsel raises issues in relation to the position taken by the plaintiffs in relation to sale of the property, delays incurred by the unavailability of one witness for the plaintiffs, for cross-examination, and the position taken by the plaintiffs in relation to chattels which were ultimately found to belong to the defendant.[3] To reach a conclusion in relation to costs I have reread the judgments issued in this case, as well as the orders and minutes issued, to the extent that the latter dealt with matters other than purely administrative issues. Although there is a superficialattraction in the defendant's submission that costs should lie where they fall, becausethere have been so many disputes between the parties leading to a long and drawn- out resolution process, review of the results overall has led me to the view that it is just to make an award of costs in favour of the plaintiffs. The only issue on which the defendant enjoyed any significant measure of success was in relation to ownership of chattels in the house. Having achieved that, however, he then sought to take what was in my view an unreasonable position in relation to how this would impact on occupation rent, the details of which are fully canvassed in the judgment dated 23 August 2016 and the preceding Minute dated 17 June 2016. The Minute could, and in my view should, have led to the defendant departing from his intractable position on how rent should be assessed, but this did not occur.[4] I take into account the fact that the plaintiffs are trustees who at all times owed a duty to administer the estate in accordance with law, and this included a need to have resolution of all issues between them and the defendant related to his ownership of part of the house in which he resided, and complicated issues in relation to ownership of chattels. In my opinion the trustees were justified in bringing the proceeding. Further, in my view it cannot be said that they have acted other than reasonably throughout. Similarly the defendant has been entitled to take the points he has taken along the way, subject only to the comments I have made above in relation to his stance on occupation rent.[5] Overall, I conclude that the plaintiffs are entitled to costs on a 2B basis, as sought, on each step in the proceeding. The sum arrived at, however, will be discounted by 15 per cent to reflect the measure of success enjoyed by the defendant in relation to ownership of chattels. In assessing this discount I have taken into account the probability that had the assessment of occupation rent been an isolated issue I would have awarded increased costs to the plaintiffs because of the unreasonable position adopted by the defendant. In reviewing costs on an overall basis the appropriate way, in my view, to reflect that position is to allow a slightly lower discount to the defendant than would have been the case otherwise.[6] The defendant will also pay to the plaintiffs disbursements in a sum fixed, if necessary, by the Registrar if counsel are unable to agree.[7] Finally, I note an indication by Mr Bayley that in his view it may be difficult to assess costs on a 2B basis. He says there is scope for dispute on exactly what the appropriate scale steps are. The scale, however, is quite straightforward to apply and I doubt there will be any difficulty in assessing costs in accordance with this judgment. However, if difficulty does arise in relation to isolating the steps to which the award of costs applies, the issue may be referred to me by memorandum for a ruling._______________________J G MatthewsAssociate JudgeSolicitors:Hatherly Loughnan, ChristchurchRhodes & Co, Christchurch