Boswell v Korving - [2022] NZHC 2469

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

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1735

[2022] NZHC 2469

BETWEEN
KATHRYN FRANCES BOSWELL

Applicant

AND

ANTHONY ROBERT KORVING

First Respondent

ANTHONY ROBERT KOVING and

GRAHAM GUNN as trustees of the ROBERT KORVING FAMILY TRUST

Hearing: On the papers

Counsel:

K F Boswell in person

M A Tapsell for Respondents

Judgment:

22 September 2022

JUDGMENT OF WOOLFORD J

(Costs)

This judgment was delivered by me on Wednesday, 28 September 2022 at 12:30 pm
pursuant to r 11.5 of the High Court Rules.

Solicitors: Law & Associates (M A Tapsell), Auckland Copy to: Applicant

BOSWELL v KORVING [2022] NZHC 2469 [22 September 2022]

[1] On 5 August 2021, Judge J G Adams ordered discovery of Ms Boswell’s medical records.1 Ms Boswell filed an appeal against the order on 27 August 2021. Ms Boswell later filed an affidavit from a general practitioner dated 7 September 2021.

[2] On 9 December 2021 I granted Ms Boswell’s appeal, as the affidavit made a blanket discovery order unnecessary.2

[3]Ms Boswell now seeks an award of costs.

Legal principles

[4] As a self-represented litigant, Ms Boswell is unable to claim costs.3 She may, however, claim disbursements, provided they meet the test in rule 14.12 of the High Court Rules 2016 (Rules), that is, they are specific to the conduct of the proceeding, reasonably necessary for the conduct of the proceeding, and reasonable in amount.4

Claim

[5] Ms Boswell acknowledges the above principles, and claims only the following disbursements, for which she attaches her invoices:

(a)$540.00 – filing fee;

(b)$640.00 – scheduling fee;

(c)$162.17 and $20.85 – photocopying and stationery;

(d)$4.50 – courier;

(e)$460.00 – doctor’s fee;

(f)$16.60 – travel to Kaeo;

1      Boswell v Korving [2021] NZFC 7834.
2      Boswell v Korving [2021] NZHC 3373.
3      McGuire v Secretary for Justice [2018] NZSC 116, [2019] 1 NZLR 335 at [55].
4      High Court Rules 2016, r 14.12(2)(b)–(d).

(g)$33.20 – travel to Kaeo to prepare the doctor’s affidavit;

(h)$149.40 – travel to Kerikeri three times, for the purposes of photocopying, and signing of the affidavit of Sarah Wynyard-Davis on 7 August 2021;

(i)$2,449.50 – legal advice from Lady Deborah Chambers KC;

(j)$463.14 – travel to Lady Chambers;

(k)$1,150.00 – online legal services.

Submissions

[6] Mr Tapsell, counsel for Mr Korving, submits no award of disbursements should be made, because, had Ms Boswell filed the doctor’s affidavit in the Family Court, her appeal may not have been necessary.

[7] Ms Boswell replies that she attempted unsuccessfully to bring the doctor’s evidence, then in the form of a letter, to the attention of the Family Court.

[8] Alternatively, Mr Tapsell addresses the claimed disbursements one by one. He accepts disbursements (a) to (d) meet the test in r…

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 Boswell v Korving

Details

AGLC: Boswell v Korving [2022] NZHC 2469
Case: [2022] NZHC 2469
Decision Date: 22 September 2022

CaseChat Overview and Summary

The High Court of New Zealand, Auckland Registry, heard an application by Kathryn Boswell for an award of costs in relation to an appeal she brought against an order for the discovery of her medical records. This appeal was successful. The appeal was against an order made in a family law matter between the parties. The legal issue before the court was whether the applicant could claim disbursements, in accordance with rule 14.12 of the High Court Rules 2016, for various expenses she incurred in connection with the appeal. The court found that Ms Boswell could claim costs for specific disbursements, including the filing fee, scheduling fee, photocopying and stationery, couriers, and the doctor’s consultation and evidence preparation, as these were reasonably necessary and reasonable in amount. However, the court ruled that other expenses, such as travel to Kerikeri, travel to Lady Chambers, and online legal services, were not allowable as they were either not reasonably necessary or not incurred for the conduct of the proceeding.

The court held that while the doctor’s evidence was necessary for the appeal, the travel expenses related to it were not reasonable. The court also determined that the legal fees and travel expenses related to Lady Chambers were not allowable as they were not reasonably necessary for the appeal. Additionally, the online legal services were not allowable as they were not incurred for the conduct of the appeal. The court concluded that the total costs awarded to Ms Boswell were $1,827.52, which included the filing fee, scheduling fee, photocopying, couriers, and the doctor’s consultation and evidence preparation.

Orders