SCANNELL v LOVE [2017] NZHC 867

SCANNELL v LOVE [2017] NZHC 867

The presumption in r 15.23 applies and is not displaced because the High Court proceeding was unnecessary given the defendant's election to have relationship property dealt with under the Property (Relationships) Act and the Family Court's exclusive jurisdiction; accordingly costs are awarded to the defendant on a...

Source-derived case information.

Citation
[2017] NZHC 867
Parties
Plaintiff Executor: Patrick Brian Scannell; Plaintiff Executor: Ann Marie Judd; Defendant Widower: Frank Ernest Love
Court
High Court
Jurisdiction
New Zealand
Judgment Date
3 May 2017
Procedural Posture
Section 339 Application Under the Property Law Act 2007 / Costs Application Following Discontinuance of Plaintiffs' Proceeding
Outcome
Costs awarded to the defendant on a 1A basis plus disbursements fixed by the Registrar
Legal Topics
Order for Sale, Occupation Order, Discontinuance, Jurisdiction, Costs on Discontinuance, Relationship Property
Property Law Family Law Probate Civil Procedure Costs Order for Sale Occupation Order Discontinuance +3 more

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Parties

Patrick Brian Scannell

Plaintiff Executor

Ann Marie Judd

Plaintiff Executor

Frank Ernest Love

Defendant Widower

Procedural Posture

Section 339 Application Under the Property Law Act 2007 / Costs Application Following Discontinuance of Plaintiffs' Proceeding

Legal Issues

  1. 1 Whether the presumption in r 15.23 High Court Rules entitles the defendant to costs following discontinuance by the plaintiffs
  2. 2 Whether the High Court had jurisdiction under s 339 Property Law Act to determine matters concerning division of relationship property
  3. 3 Whether circumstances existed to displace the r 15.23 presumption and make costs lie where they fall

Ratio Decidendi

The presumption in r 15.23 applies and is not displaced because the High Court proceeding was unnecessary given the defendant's election to have relationship property dealt with under the Property (Relationships) Act and the Family Court's exclusive jurisdiction; accordingly costs are awarded to the defendant on a 1A basis plus disbursements fixed by the Registrar.

Court Disposition

Costs awarded to the defendant on a 1A basis plus disbursements fixed by the Registrar

Orders

  • Costs to defendant on a 1A basis
  • Disbursements to defendant as fixed by the Registrar