Billington v Morton - [2018] NZHC 2530

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 align="center">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 THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-751 [2018] NZHC 2530

BETWEEN
MALCOLM HAROLD BILLINGTON

Appellant

AND

DEBRA CHARLOTTE MORTON First Respondent

AND

WILSON McKAY TRUSTEE COMPANY LIMITED

Second Respondent

Hearing: 19 September 2018

Appearances:

S R Mitchell for Appellant
K Swadling for First Respondents

Judgment:

28 September 2018

JUDGMENT OF NICHOLAS DAVIDSON J

A. INTRODUCTION

[1] Under the costs regimes which apply in New Zealand, parties risk incurring orders for increased costs where their case is unmeritorious, or they conduct their case in an unnecessarily protracted or disordered way.

BILLINGTON v MORTON [2018] NZHC 2530 [28 September 2018]

[2] This judgment concerns an appeal against a costs judgment of the Family Court by which the appellant, Mr Billington, was ordered to pay costs in the sum of
$50,000.00.1 This reflected Scale 2B costs of $33,820.00, and an uplift for the lack of

merit in Mr Billington’s case.2

[3] Mr Billington appealed the substantive judgment to the High Court. By Minute of 7 December 2017, Muir J recorded that the parties had “sensibly agreed to resolve the appeal”, and said:

This is on terms which involve departures from the division of property and mechanisms of distribution ordered by the Family Court in its judgment dated
16 June 2017. They have entered into a formal memorandum of consent which will be annexed to this Minute.

[4] The Minute went on to record elements of the settlement reached, but not in a comprehensive way. The Judge recognised the efforts of the parties and counsel to reach what he called a “highly desirable outcome”, in the context of there being two children of the relationship.

[5] Costs were then determined by the Family Court Judge on 28 March 2018.

In essence Mr Billington says, through his counsel Mr Mitchell, that the Judge did not follow the prescribed route to determine whether an uplift in costs was warranted, and failed to have regard to the fact of, and terms of, the settlement.

[6] Ms Swadling for the respondent opposes any relief on this costs appeal but accepts that if it is successful, the outcome should be determined by this Court rather than by referring the matter back to the Family Court. Ms Swadling also sought leave to bring a cross-appeal out of time as the costs judgment did not on its face award disbursements to the respondent, to which she says the respondent was entitled.

Grounds of appeal

[7] The appellant pleads that judgment was wrong in finding:

1 Morton v Billington [2017]…

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 2530
Decision Date: 28 September 2018

CaseChat Overview and Summary

In the case of Billington v Morton [2018] NZHC 2530, the appellant, Mr Billington, sought to appeal a costs judgment made by the Family Court in relation to a property settlement dispute. The Family Court had ordered Mr Billington to pay costs in the sum of $50,000.00, which reflected Scale 2B costs of $33,820.00, and an uplift for the lack of merit in Mr Billington’s case. The appeal was brought on the grounds that the Family Court Judge did not follow the prescribed route to determine whether an uplift in costs was warranted and failed to have regard to the fact of, and terms of, the settlement. Mr Billington argued that the settlement should have been considered by the Family Court as an important factor in its costs determination and that instead, the Family Court treated the High Court orders as irrelevant. Additionally, Mr Billington submitted that the stepped process for calculating increased costs was not followed, and it was not sufficient to simply conclude that he failed in most of his arguments before the Court. The Court found that while the terms of settlement may in principle bear on the question of costs, it was not necessary to bring that to account as there was no evidence that the parties mutually recognised, or should be taken to have accepted, that there was something about the judgment that was wrong. The Court concluded that the grounds of appeal were not made out and dismissed the appeal. The Court also refused leave for the cross appeal as there was too much doubt about what the Judge intended regarding the costs award, and it was not prepared to guess what the Judge did or did not do. The costs uplift was upheld.

Orders