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…

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.

Continue reading BLK v FK

Details

AGLC: BLK v FK [2017] NZHC 1143
Case: [2017] NZHC 1143
Decision Date: 30 May 2017

CaseChat Overview and Summary

The High Court of New Zealand dealt with an appeal in the matter of BLK v FK, where BLK, the appellant, sought to appeal a decision made by the Family Court. FK, the respondent, filed an application for increased costs against the appellant. The appellant opposed any award of costs against him. The case involved longstanding proceedings between the appellant and his former wife, concerning their child. The appellant's behaviour had led to charges and convictions in the criminal jurisdiction. The respondent sought increased costs based on the appellant's vexatious, frivolous, improper, or unnecessary conduct in the proceedings. The court examined the legal issues and the appellant's position, including his claims of legal aid and his medical conditions. The court concluded that the respondent had a strong case for increased costs and awarded the respondent scale 2B costs with a 25% uplift on a category 2B basis. The respondent was also entitled to the disbursements claimed, excluding the costs of air fares from Nelson to Wellington.

The court's reasoning focused on the appellant's conduct throughout the proceedings, his failure to comply with court rules and directions, and the lack of merit in his purported appeal. The court relied on the principles established in the case of Bradbury v Westpac Banking Corporation, which outlined circumstances warranting indemnity costs and increased costs. The court considered that the respondent's request for increased costs was reasonable, given the appellant's conduct and the financial burden the proceedings had placed on the respondent. The court also noted that the appellant's claims of legal aid and medical conditions did not persuade the court to not award increased costs. The court determined that the respondent was entitled to scale 2B costs on a category 2B basis, with a 25% uplift, and the disbursements claimed, excluding the costs of air fares from Nelson to Wellington.

In conclusion, the court granted the respondent's application for increased costs against the appellant in the matter of BLK v FK. The court awarded the respondent scale 2B costs on a category 2B basis, with a 25% uplift, and the disbursements claimed, excluding the costs of air fares from Nelson to Wellington. The court found the appellant's conduct in the proceedings to be vexatious, frivolous, improper, or unnecessary, justifying the award of increased costs. The court also considered the respondent's financial burden and the number of outstanding costs awards against the appellant in favour of the respondent. The court's decision highlights the importance of adhering to court rules and directions, and the consequences of engaging in frivolous or vexatious conduct in legal proceedings.

Orders