Booth v Booth - [2019] NZHC 3484

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-949

[2019] NZHC 3484

BETWEEN
TANIA BOOTH

Plaintiff

AND

JASON BOOTH

First defendant

RAY CHARLES BOOTH
Second defendant

ANN BOOTH

Third defendant

Counsel:
J Delany for plaintiff

J Maassen for first defendant
A Isac QC for second and third defendants

Judgment:

20 December 2019

COSTS JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[On the papers]

[1] In my judgment dated 25 September 2009 I dealt with the first defendant’s application for summary judgment and the second and third defendants’ application for an order striking out the plaintiff’s claim against them.1 I entered summary judgment in the first defendant’s favour and struck out the plaintiff’s claims against the second and third defendants. I reserved costs, assuming that counsel would be able to deal with these without further reference to the Court.

1 Booth v Booth [2019] NZHC 2424, [2019] NZFLR 225.

BOOTH v BOOTH [2019] NZHC 3484 [20 December 2019]

[2] Regrettably, counsel have been unable to do so and I now have for determination costs applications by both the first defendant and for the second and third defendants.

[3] Both seek costs on a 2B basis, which is appropriate. I have reviewed the memoranda filed by Mr Maassen on behalf of the first defendant and Mr Isac on behalf of the second and third defendants. Broadly speaking, subject to some minor matters, their costs claims appear to me to be in order.

[4] For the plaintiff, Mr Delany contends that as she has appealed against my judgment, the determination of costs ought to await the outcome of the appeal. That is not the approach that the courts take. Costs must be determined. Of course, any costs order I make will be subject to any order the Court of Appeal makes on the appeal.

[5] Over and above that point, Mr Delany raises questions concerning the claim relating to the 28 May 2019 case management conference. I accept that that conference related not only to this proceeding but also other proceedings between the parties. The claim made on behalf of the first defendant (step 13) is to be reduced by two thirds, as is the claim made on behalf of the second and third defendants.

[6] I decline to order any adjustment to the claims made in respect of the case management conference on 5 June 2019. The time allocation provided for in the High Court Rules 2016 is intended to identify an appropriate allocation of time for all attendances relating to such conferences.

[7] I accept Mr Delany’s submission that there should be no allowance for sealing of the judgment unless the judgment has been sealed.

[8] I do not understand Mr Delany’s submission in relation to step 30. This is a claim for the preparation of affidavits, lists of issues and authorities and agreeing a common bundle. Whilst it is true that the plaintiff’s substantive case was not heard, those actions related…

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 Booth v Booth

Details

AGLC: Booth v Booth [2019] NZHC 3484
Case: [2019] NZHC 3484
Decision Date: 20 December 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Tania Booth filed a claim against her former husband, Jason Booth, and her parents, Ray Charles Booth and Ann Booth, following their dissolution of marriage. The dispute primarily centred around the division of matrimonial assets, as well as other related matters. The Court was tasked with determining the appropriate allocation of costs between the parties involved.

The central legal issue in this case was whether the costs claimed by the defendants, particularly regarding the unsuccessful claims against the second and third defendants, were justifiable and reasonable. Furthermore, the court had to decide whether there should be any uplifts in the costs claims due to the plaintiff's refusal to discontinue her claims against her parents, despite their offer to forgo claiming costs if she did so.

Associate Judge Johnston, in his judgment, concluded that the costs claims by the defendants were broadly in order, subject to some minor adjustments. The judge determined that the plaintiff's appeal against the earlier judgment did not prevent the determination of costs. He also accepted that the costs relating to a specific case management conference should be reduced by two-thirds, but declined to make any adjustments to the claims for another case management conference. Additionally, the judge ruled that there should be no allowance for sealing of the judgment unless it had been sealed and that there should be no adjustment to the claims for the preparation of affidavits and other documents. Based on these findings, the judge reduced the costs claims for the first and second/third defendants accordingly.

Ultimately, the court declined to order any uplifts in the costs claims for the second and third defendants, given the difficult and novel issues raised by the plaintiff's claims. The judge also noted that the defendants had agreed not to enforce any costs order except in the final stages of the Property (Relationships) Act proceeding between Jason and Tania.

Orders