B v B

[2017] NZHC 1069

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980.  FOR FURTHER INFORMATION, PLEASE SEE

THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING- JUDGMENTS.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-1892 [2017] NZHC 1069

UNDER

the Property (Relationships) Act 1976

BETWEEN

P B Appellant

AND

B J B
First Respondent

A B and S B

Second Respondents

Hearing:	(On the papers)
Counsel:	Appellant in person D Chambers QC for First Respondent
Judgment:	22 May 2017

COSTS JUDGMENT OF BREWER J

Solicitors:           Peter McCutcheon (Auckland) for First Respondent

Counsel:            Lady Deborah Chambers QC (Copy to Appellant in person)

P B v B J B [2017] NZHC 1069 [22 May 2017]

[1]      In my judgment delivered on 12 April 2017, I ordered Mr B to pay Mrs B’s

costs on a 2B basis.1   Mr B disputes Mrs B’s schedule of costs in two respects.

[2]      First, Mr B submits that the High Court does not grant costs for a second counsel.   This submission is incorrect.   Item 27 of Schedule 3 to the High Court Rules provides that costs for second counsel can be given “if allowed by Court”. These costs are to be 50 per cent of the costs allowed for the appearance of principal counsel.   In OM Hardware Ltd v Body Corporate 303662, Dunningham J usefully

summarised the approach the Court takes:2

[18]      The  last  challenged  claim  …  is  for  second  and  subsequent  counsel  if allowed by the Court. While I accept that it was not unreasonable to have second counsel on this sort of case, the focus, particularly in a 2B proceeding, is on whether second counsel was necessary rather than reasonable. For example, in Roading & Asphalt Limited v South Waikato District Council, Keane J  considered that the decision to award of [sic] costs for second counsel turns on whether the hearing could have been conducted by principal counsel only.[3]  On that basis, I am satisfied that this case was neither sufficiently complex nor intensive to justify a costs allowance for second counsel.

[3]      The question is whether Mrs B’s second counsel was necessary.  I am of the view that second counsel was not necessary.  This was a very straightforward set of interlocutory arguments.  I therefore disallow costs for second counsel.

[4]      Second, Mr B submits that the costs for an interpreter cannot be claimed because   Katz J   directed   him   to   provide   translations.      This   submission   is misconceived.  Costs remain at the discretion of the Court.4

[5]      In a Minute dated 6 September 2016, Katz J ordered Mr B to provide a certified translation of any documents included in his evidence which are not in English by 27 September 2016.

[6]      Mrs B submits that Mr B did not comply with this order.  She submits that he instead  filed  the  requisite  documents  on  4  February  2017.    In  the  meantime,

Ms Goetthans  filed  an  affidavit  dated  1  November  2016  on  behalf  of  Mrs B

1      PB v BJB [2017] NZHC 715 at [34].

2      OM Hardware Ltd v Body Corporate 303662 [2015] NZHC 574.

3      Roading & Asphalt Ltd v South Waikato District Council [2012] NZHC 2243 at [4].

4      High Court Rules, r 14.1

translating  various  German  documents  which  Mr  B  had  filed  in  the  Court

untranslated.  Mrs B now claims fees for Ms Goetthans’s services. [7]          I allow the costs for the interpreter.

Orders

[8]      I order that Mr B pay Mrs B’s 2B costs as calculated, less the claim for second counsel, being $20,616.

Brewer J