Billington v Morton - [2018] NZHC 3212

NOTE: PURSUANT TO S 169 OF THE FAMILY PROCEEDINGS ACT 1980, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B,

11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-751

[2018] NZHC 3212

IN THE MATTER Of the Family Proceedings Act 1980 and the Property (Relationships) Act 1976

BETWEEN

MALCOLM HAROLD BILLINGTON

Appellant

AND

DEBRA CHARLOTTE MORTON

First Respondent

AND

WILSON McKAY TRUSTEE COMPANY LIMITED

Second Respondent

Hearing: (On the Papers)

Appearances:

M H Billington (self-represented) K E Swadling for First Respondent

Judgment:

7 December 2018

JUDGMENT OF NICHOLAS DAVIDSON J (COSTS)

BILLINGTON v MORTON [2018] NZHC 3212 [7 December 2018]

Introduction

[1] This judgment addresses costs sought by the first respondent, Ms Morton, following delivery of judgments given on appeal from a costs decision of the Family Court,1 and on an application for recall of the judgment given.2

[2] Mr Billington was not successful in his appeal against the costs decision of His Honour Judge Maude, nor was he successful on his application for recall of the costs judgment on appeal.

Mr Billington’s position

[3] By memorandum of 26 November 2018, Mr Billington says that his costs appeal was based on legal advice, and that the security for costs paid into court was thought to be sufficient to meet any costs order. The Registrar of the Auckland High Court holds $3,000.00 as security for costs and there is some interest accrued, about $15.00.

[4] Mr Billington submits that he has reached an age where he has no work income, and has a dependent son. He suffers acute long-term stress. He says he relies on a benefit which does not meet his living expenses. Otherwise, he says he has no financial assistance from the Billington Dromorne Trust which has figured prominently in the litigation. He has depleted funds, and has rates and other debts to pay. He did not qualify for legal aid. He says he has shown ‘compassion’ to Ms Morton in other proceedings by not seeking costs and consent orders in the High Court, provided that costs lie where they fell (as agreed).

[5] By a second memorandum of 27 November 2018, Mr Billington says there will be funds available to him when the trust property is sold and he wants any costs ordered to be treated as an adjustment in the final settlement of all relationship property issues. On that basis, he says that costs can be ‘agreed’.

1 Billington v Morton [2018] NZHC 2530.
2 Billington v Morton [2018] NZHC 3084.

Ms Morton’s position

[6] Ms Swadling, counsel for Ms Morton, by memorandum of 27 November 2018, addresses costs on the costs appeal and the…

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: [2018] NZHC 3212
Decision Date: 7 December 2018

CaseChat Overview and Summary

The High Court of New Zealand, Auckland Registry, presided over by Justice Nicholas Davidson, dealt with a case concerning the costs sought by Debra Charlotte Morton against Malcolm Harold Billington, with Wilson McKay Trustee Company Limited also being a respondent. This case was a follow-up to an appeal by Billington against a costs decision made by the Family Court and an application for recall of the costs judgment on appeal. Billington, who was unrepresented, argued that his financial situation had deteriorated significantly, and he was unable to meet the costs ordered by the court. Morton, on the other hand, sought costs according to the scale and argued that Billington had sufficient financial resources, including properties and a pension in the United Kingdom, to pay the costs.

The legal issues in this case revolved around whether Morton was entitled to costs on the appeal and recall application and, if so, whether these costs should be reduced based on Billington's financial hardship. The court had to decide on the appropriate amount of costs to be awarded to Morton and whether the security for costs held by the Registrar should be paid to her to offset the costs owed by Billington.

Justice Davidson ruled in favour of Morton, stating that she was entitled to the costs she sought. The judge found that Morton had succeeded on the costs appeal and recall application, and there was no principled basis to temper the costs awarded to her based on Billington's financial situation. Although the judge acknowledged Billington's financial difficulties and the impact of the litigation on him, he was not prepared to reduce the costs owed by Billington. The court ordered Billington to pay $5,909.50 on the recall application and $11,484.50 on the costs appeal, with interest running at Judicature Act rates from the date of the costs order until payment. The Registrar was ordered to pay Morton the full sum held as security with interest, which would be set off against the costs owed by Billington. The judge urged the parties to reach an agreement on a marketing budget for the property in question to facilitate the release of funds through its sale and avoid further costs in the litigation.

Orders