BAM v GJM - [2013] NZHC 304

NOTE: ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS
11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION PLEASE SEE COURT/ABOUT/MEDIA/GUIDELINES#FC9.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-005766 [2013] NZHC 304

IN THE MATTER OF an appeal under s 39(1)(b) of the
Property (Relationships) Act 1976

BETWEEN BAM Appellant

ANDGJM Respondent

Hearing: 14 February 2013

Counsel: R C Knight for the Appellant
B M Ward for the Respondent

Judgment: 25 February 2013

JUDGMENT OF DUFFY J

This judgment was delivered by Justice Duffy on 25 February 2013 at 3.00 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Counsel: R C Knight P O Box 2946 Shortland Street Auckland 1140 for the Appellant

Solicitors: Gellert Ivanson Limited P O Box 302085 North Harbour North Shore City 0751 (DX CP35513) for the Respondent

Copy To: Sean Kelly Lawyers (S P Kelly) Unit G11 Zone 23 23 Edwin Street
Mount Eden Auckland 1024 (DX CX10337)

BAM v GJM HC AK CIV-2012-404-005766 [25 February 2013]

[1] This is an appeal against a decision of the Family Court declining to make an order for security for costs ordering the respondent to provide a charge to the value of $20,000 over her property at Takapuna. The appeal is opposed.

[2] The appellant contends that the Family Court Judge failed to apply the settled principles for the making of such an order. On the other hand, the respondent contends that the relevant legal principles were applied and that in terms of those principles, the threshold test for making such an order was not crossed.

[3] The hearing in the Family Court has been set down for three days and is to occur in April of this year.

Family Court decision

[4] The Judge commenced his decision by referring to the relevant rule, which is r 4.20.1(b) of the District Courts Rules 2009. The relevant words of the rules are that “there is reason to believe that a plaintiff will be unable to pay the costs of the defendant if the plaintiff is unsuccessful in the plaintiff’s proceeding”.

[5] The Judge said that the rule was designed to protect the defendants or respondents who are put to expense by “impecunious plaintiffs, particularly where the claim seems insubstantial” (at [3]).

[6] The Judge then referred to the commentary in the relevant rule, which stated that:

The threshold test now seems to be that the defendant must adduce some evidence of impecuniosity and/or other reasons to support belief that the plaintiff will be unable to pay costs.

[7] The Judge referred to earlier descriptions of the threshold test as “amorphous” and to authority relied upon by the appellant’s counsel (see Hamilton v Papakura District Council (1997) 11 PRNZ 333 at 335 per Hammond J.), where it was said that the rule:

Necessarily raises a threshold test; but I respectively agree with those authorities which hold that what is required is a broad overall assessment

under…

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.

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Details

Case: [2013] NZHC 304
Decision Date: 25 February 2013

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, the case of BAM v GJM involved an appeal against the Family Court's decision not to grant an order for security for costs, which would have required the respondent to provide a charge on her property in Takapuna. The appellant argued that the Family Court Judge misapplied the principles for making such an order, while the respondent contended that the legal principles were correctly applied and that the threshold test was not met. The hearing in the Family Court was scheduled for three days in April. The Family Court Judge began by referencing the relevant rule, r 4.20.1(b) of the District Courts Rules 2009, which allows for security for costs if there is reason to believe that a plaintiff will be unable to pay the defendant's costs if unsuccessful. The Judge assessed the respondent's financial evidence and accepted it, finding that she was not impecunious and dismissing the application for security for costs. The Judge also awarded costs to the respondent.

The appellant's grounds for appeal were: (1) the Judge erred in law by not acknowledging the threshold issue of impecuniosity as a matter of evidence; (2) the Judge did not consider the threshold test before exercising his discretion; (3) the Judge erred in finding the respondent was not impecunious; and (4) the costs order was unjustified. The appellant argued that the Judge wrongly conflated the exercise of discretion with the threshold issue and that the Judge failed to determine the threshold question. The Court agreed with the appellant that the Judge's judgment was not elegantly presented, but found that the Judge had understood the sequential nature of the test and how to apply it. The Court considered the evidence before the Judge and found that it was open to him to rely on the respondent's evidence and conclude that she was not impecunious. Fresh evidence filed in the appeal confirmed the respondent's financial circumstances, and the Court found that the respondent was not unable to pay an award of costs. The appeal was dismissed, and the respondent was awarded costs at category 1A.

Orders