TERVOERT v SCOBIE [2020] NZHC 1967
Because the plaintiff succeeded on the quantum meruit claim arising from the same facts as the failed constructive trust claim, and the amended pleading did not negate entitlement to costs, the court awarded costs to the plaintiff on a 2B basis as reasonable in the circumstances.
Source-derived case information.
- Citation
- [2020] NZHC 1967
- Parties
- Plaintiff: Jan-Marie Tervoert; Defendant: Noel George Archibald Scobie; Defendant: Marie June Scobie; Defendant: Townsend Trustee Limited
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 6 August 2020
- Procedural Posture
- Civil Costs Application / Post Judgment Costs Application (on the Papers)
- Outcome
- Costs awarded to the plaintiff on a 2B basis.
- Legal Topics
- Costs, Quantum Meruit, Constructive Trust, Interest
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jan-Marie Tervoert
Plaintiff
Noel George Archibald Scobie
Defendant
Marie June Scobie
Defendant
Townsend Trustee Limited
Defendant
Procedural Posture
Civil Costs Application / Post Judgment Costs Application (on the Papers)
Legal Issues
- 1 Whether the plaintiff was entitled to costs following judgment
- 2 Whether success on an alternative cause of action (quantum meruit) entitled the plaintiff to costs despite failing on constructive trust
- 3 Whether the late amendment to pleadings affected entitlement to costs
Ratio Decidendi
Because the plaintiff succeeded on the quantum meruit claim arising from the same facts as the failed constructive trust claim, and the amended pleading did not negate entitlement to costs, the court awarded costs to the plaintiff on a 2B basis as reasonable in the circumstances.
Court Disposition
Costs awarded to the plaintiff on a 2B basis.
Orders
- Costs awarded to the plaintiff on a 2B basis totalling $41,347 together with disbursements of $2,100.
Full Case Text
Judgment text and source record
1 paragraphs
TERVOERT v SCOBIE [2020] NZHC 1967 [6 August 2020]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROANGĀMOTU ROHECIV-2018-443-11[2020] NZHC 1967BETWEEN JAN-MARIE TERVOERTPlaintiffAND NOEL GEORGE ARCHIBALD SCOBIEMARIE JUNE SCOBIEDOWNSEND TRUSTEE LIMITEDDefendantOn the papersCounsel: P J Mooney for the PlaintiffS J Shamy for the DefendantsJudgment: 6 August 2020JUDGMENT OF CULL J[On Costs][1] Following the judgment delivered on 19 May 2020,1 Counsel for both partieshave filed memoranda of costs. The plaintiff seeks costs on a 2B basis, having beensuccessful on one of the two alternative causes of action in the proceeding.[2] The defendants oppose the award of costs to the plaintiff, submitting that costsshould lie where they fall. They say that the plaintiff did not succeed on the majoraspect of her claim, namely constructive trust, and she has the benefit of a generousaward of interest under the judgment in respect of her successful alternative claim forquantum meruit. Reliance for this submission is based on the original statement ofclaim, which did not plead quantum meruit. It was pleaded in an amended statementof claim 10 months after the original claim was filed. The relevance of this is that the1 Tervoert v Scobie [2020] NZHC 1039.costs for preparation involved the unsuccessful constructive trust claim, not thequantum meruit claim which was initially pleaded with an incorrect amount for theplaintiff's payments to the defendants.[3] In this case, the claim for costs on a 2B basis is unremarkable. Costs followthe successful outcome for the plaintiff and are sought within the ordinary rangeapplicable. No reasons are normally required in such circumstances.[4] However, addressing the defendants' submissions, the plaintiff was successfulin one of the alternative causes of actions. The same facts, background and financialcontributions were applicable to both causes of actions. In the end, the plaintiffsucceeded on a quantum meruit basis, albeit at a lower amount than sought. Theinterest awarded takes into account the work which the plaintiff undertook over thetime period, for which no use of money interest of compound interest was calculated.[5] I consider that the plaintiff's claim for costs on a 2B basis is reasonable.[6] Accordingly, costs are awarded to the plaintiff on a 2B basis totalling $41,347,together with disbursements of $2,100.Cull JSolicitors:Mooney and Webb, New Plymouth for the PlaintiffIan Robertson and Co, Christchurch for the Defendants