Boyd v Kendrick - [2020] NZHC 1309

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-2715

[2020] NZHC 1309

IN THE MATTER of an appeal against costs order of Family Court

BETWEEN

ROGER GRAEME BOYD

Appellant

AND

SUZANNE JOAN KENDRICK

Respondent

Hearing: On the papers

Counsel:

Appellant on own behalf

C Townsend for the Respondent

Judgment:

12 June 2020

JUDGMENT OF GORDON J

[As to costs]

This judgment was delivered by me on 12 June 2020 at 2.00 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors: Urlich Milne, Auckland Counsel: C Townsend, Auckland
Copy To: The Appellant

BOYD v KENDRICK [2020] NZHC 1309 [12 June 2020]

Introduction

[1]This is an application for costs by the respondent, Suzanne Kendrick.

[2] In my judgment of 30 April 2020, I struck out Mr Boyd’s appeal against a costs order made in the Family Court against him in favour of Ms Kendrick. This followed Mr Boyd’s unsuccessful defence of Ms Kendrick’s application for dissolution of their marriage. The appeal was struck out, as it was brought out of time.1 In any event, I considered the appeal on its merits and said that if I had not struck it out I would have dismissed it.2

[3] I reserved costs. The parties have not been able to agree costs and separate memoranda have been filed.

The claim for costs

[4] Ms Townsend, for Ms Kendrick, attaches a schedule of 2B scale costs to her memorandum. She calculates scale costs as $9,321 and adds a disbursement of $50, the fee for sealing a Court order, bringing the total to $9,371. A copy of Ms Townsend’s schedule of scale costs is annexed to this judgment.

[5] The claim however is for actual costs incurred. Ms Townsend annexes her invoices to her memorandum. Those invoices total $8,027.51. She adds a disbursement of $50 for sealing a Court order, bringing the total to $8,077.51.3

Mr Boyd’s opposition

[6] Mr Boyd’s primary submission is that costs should lie where they fall. He submits that “honours are shared” as there were successes and failures on both sides.

[7] Mr Boyd also addresses the detail of the claim. He submits, in relation to the invoices, that some of the invoiced items were incurred prior to the filing of the appeal

1 Boyd v Kendrick [2020] NZHC 849.
2 At [86].
3 Though Ms Kendrick adds a disbursement of only $5 and records a final total of $8,032.51 in the schedule annexed to her memorandum.

and that the amounts invoiced for preparing the costs memorandum should not be allowed as courts do not generally award costs on costs. Mr Boyd submits the actual costs should therefore be $6,144.45.

[8] As to scale costs, Mr Boyd submits that some items should be removed and some are excessive. Mr Boyd submits that the total of scale costs, calculated on a 2B basis, should be $2,629.

Should costs lie where they fall?

[9] Ms Kendrick was successful…

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 Boyd v Kendrick

Details

AGLC: Boyd v Kendrick [2020] NZHC 1309
Case: [2020] NZHC 1309
Decision Date: 12 June 2020

CaseChat Overview and Summary

In Boyd v Kendrick, the High Court of New Zealand considered an application for costs by Suzanne Kendrick against Roger Graeme Boyd. The appeal was brought by Boyd against a Family Court order that awarded costs to Kendrick in relation to her successful application for the dissolution of their marriage. The appeal was struck out for being out of time and, on the merits, the appeal would have been dismissed. The court reserved the question of costs, which the parties were unable to agree on, leading to separate memoranda being filed.

The legal issues before the court were whether costs should lie where they fell, as argued by Boyd, and if not, what the quantum of costs should be. The court found that Kendrick, as the successful party, was entitled to costs. The court examined the scale costs and actual costs claimed by Kendrick and found that the proceedings were appropriately categorised as 2A rather than 2B, resulting in a lower scale cost calculation. The court also made various findings on specific items of costs claimed by Kendrick, reducing the amount allowable in several instances. Finally, the court disallowed the claim for interest on costs.

The court awarded Kendrick costs in the sum of $5,975.00, directing the registry to release $1,195.00 held as security for costs to Kendrick in part satisfaction of the costs awarded. The balance of $4,780 was payable by Boyd to Kendrick.

Orders