BLK v FK

[2017] NZHC 1143

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2016-485-764 [2017] NZHC 1143

UNDER

Section 143 of the Care of Children Act

2004

IN THE MATTER

of an appeal against the decision of Judge
Black dated 24 August 2016

BETWEEN

BLK Appellant

AND

FK Respondent

On the papers
Counsel:	Appellant in Person S J Stewart for Respondent
Judgment:	30 May 2017

JUDGMENT OF THOMAS J COSTS

Introduction

[1]      By my judgment dated 2 March 2017 I struck out the appellant’s purported

appeal against a decision of the Family Court and awarded costs to the respondent.1

The respondent has now filed her application seeking increased costs.  The appellant opposes any award of costs against him.

Background

[2]      The background to these proceedings is set out in some detail in my earlier

judgment.  In short, the appellant’s purported appeal against a decision of the Family

1      BLK v FK [2017] NZHC 302; and K v K [2016] NZFC 7004.

BLK v FK [2017] NZHC 1143 [30 May 2017]

Court was out of time.2   Perhaps more importantly, the appeal concerned a decision of the Family Court which was heard on a formal proof basis, the appellant having filed no evidence.

[3]      The proceedings are longstanding ones involving the appellant and his former wife and the child of their relationship.  The appellant’s behaviour has resulted in charges and convictions in the criminal jurisdiction.

The application

[4]      Counsel  for  the  respondent  contends  the  appellant’s  conduct  meets  the criteria   for   indemnity   costs,3     describing   the   appellant   as   having   behaved “vexatiously, frivolously, improperly, or unnecessarily in commencing, continuing

… a proceeding”.   However, the respondent simply seeks costs on a category 2B

basis with an increase of 25 per cent due to the appellant’s behaviour.

[5]      The respondent refers to the long running dispute between the parties, the appellant’s failure to comply with rules and directions of the Court, and that the appellant’s purported appeal lacked merit and had no prospect of success.

Appellant’s position

[6]      The appellant opposes the application, saying no order of costs should be made against him.  He contends he “was legally aided”, and attributes blame on a lawyer, allegedly a friend of the respondent’s lawyer, for telling Legal Services not to grant legal aid for this appeal.   I have already dealt with this complaint.   It is strenuously denied by counsel for the respondent.  There is nothing to support the allegation and I put it to one side.

[7]      The letter from  Legal  Services dated 16 December 2016 attached to  the

appellant’s submissions notes that the appellant had been granted legal aid in respect of a criminal proceeding, that is a “Breach Order”.4

2      High Court Rules 2016, rr 20.4 and 20.6.

3      Rule 4.6(4).

4      I infer from the context and the evidence at the appeal that this relates to an alleged breach of a protection order for the protection of the respondent and/or the child of the relationship.

[8]      The  appellant  also  notes  he  suffers  from  post  concussion  syndrome  and multiple concussion syndrome and a miscarriage of justice has arisen.   A letter from his psychiatrist is attached to his submission.  That confirms information which has been before the various courts dealing with the proceedings between the parties. Notably, the letter dated 20 March 2017 records:

There has been a slow but steady improvement in [the appellant’s] level of functioning.   He now has proper accommodation and is functioning at a much higher level.

[9]      That indeed is an encouraging report.  It is hoped the process continues and will enable the appellant to take on board the observations various judges have made about his behaviour.

The law

[10]     High Court Rule 14.6(4) governs the awarding of indemnity costs:

14.6   Increased costs and indemnity costs

(1)       Despite rules 14.2 to 14.5, the court may make an order—

(a)      increasing   costs   otherwise   payable   under   those   rules

(increased costs); or

(b)       that the costs payable are the actual costs, disbursements, and witness expenses reasonably incurred by a party (indemnity costs).

…

(4)      The court may order a party to pay indemnity costs if—

(a)       the party has acted vexatiously, frivolously, improperly, or unnecessarily in  commencing,  continuing,  or  defending a proceeding or a step in a proceeding; or

…

[11]     Bradbury v Westpac Banking Corporation is the leading case on indemnity costs, and the principles from that judgment have recently been confirmed by the

Court of Appeal.5  In Westpac, the Court of Appeal described increased costs as warranted where “there is failure by the paying party to act reasonably” and indemnity costs “where that party has behaved either badly or very unreasonably”.6

Specifically, the Court identified the following circumstances as ones where indemnity costs have been ordered:7

(a)       the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud;

(b)       particular misconduct that causes loss of time to the court and to other parties;

(c)       commencing or continuing proceedings for some ulterior motive;

(d)       doing so in wilful disregard of known facts or clearly established law;

(e)       making allegations which ought never to have been made or unduly prolonging   a   case   by   groundless   contentions,   summarised   in French J's “hopeless case” test.

[12]     Increased costs can be awarded if, under r 14.6(3)(b):

(b)       the party opposing costs has contributed unnecessarily to the time or expense of the proceeding or step in it by

(i)       failing to comply with these rules or with a direction of the court; or

(ii)      taking or pursuing an unnecessary step or an argument that lacks merit; or

(iii)     failing,  without  reasonable  justification,  to  admit  facts, evidence, documents, or accept a legal argument; or

…

[13]     Costs can be awarded  against lay litigants.8  Further, impecuniosity is  no

answer to a claim for a costs award: a costs award “should be made at a meaningful level, even against an impecunious party, when that party has advanced a case which

5      Bradbury v Westpac Banking Corporation [2009] NZCA 234, [2009] 3 NZLR 400; and Ben Nevis Forestry v Commissioner of Inland Revenue and Redcliffe Forestry Venture Limited [2014] NZCA 348, (2014) 22 PRNZ 322.

6 At [27].

7 At [29].

8      Belling v Belling [Costs] (1996) 9 PRNZ 296 (HC); cited with approval under the new costs regime Slavich v Collins [2012] NZHC 2104 at [15].

is poorly pleaded or lacking in merit”.9    However, a lack of means to pay can be a relevant consideration in exercising the discretion to award costs.10

[14]     In this case I agree with the respondent that a good case could have been made out for indemnity costs.  I say this noting the background outlined above.  I note in  particular that  the appellant’s  purported  appeal  was  out  of time, it  was deficient and failed to meet the requirements of the rules.  This deficiency continued notwithstanding an instruction from this Court at a case management conference. Furthermore, in all the circumstances the appeal had no prospect of success.

[15]     I consider the respondent is adopting an extremely reasonable position in seeking increased costs with a 25 per cent uplift over scale 2B costs only.  In saying that, I note the number of outstanding costs awards against the appellant in favour of the respondent and the continued financial pressures all these proceedings have put on the respondent, which have required her to obtain a loan from her parents in order to meet her legal fees.

[16]     None of the issues identified by the appellant persuade me that increased costs should not be granted, much less that no costs at all should be awarded.  The only point which I consider has any merit is the appellant’s observation that he should not have to pay for travel costs of the respondent’s counsel, who is based in Nelson.   I say that given the evidence that the respondent herself resides in Wellington.

Result

[17]     For  the  reasons  given,  the  respondent  is  awarded  scale  2B  costs  on  a category 2B  basis  with  an  uplift  of  25  per  cent.    She  is  also  entitled  to  the disbursements as claimed, save for the costs of air fares from Nelson to Wellington.

Thomas J

9      Te Whare O Te Kaitiaki Ngahere Inc v West Coast Regional Council [2014] NZHC 2969 at [16];

and Gibson v Fisher HC Auckland CIV-2006-404-103, 17 July 2007 at [9].

10     Tuck v Keedwell [2016] NZHC 794 at [11]; and Howard v Accident Compensation Commission

[2015] NZHC 351.

Solicitors:

C & F Legal, Nelson for Respondent