Boyd v Kendrick

[2019] NZHC 1149

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-1949

[2019] NZHC 1149

IN THE MATTER OF

An Appeal against an order dissolving marriage (Family Proceedings Act 1980)

BETWEEN

ROGER GRAEME BOYD

Appellant

AND

SUZANNE JOAN KENDRICK

Respondent

On the Papers:	at Auckland
Judgment:	19 June 2019

JUDGMENT OF POWELL J

[Costs]

This judgment was delivered by me on 19 June 2019 at 3 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

BOYD v KENDRICK [2019] NZHC 1149 [19 June 2019]

[1]                   On 17 April 2019 I dismissed Mr Boyd’s appeal on the basis that the Court did not have jurisdiction to entertain his appeal due to the effect of s 174(4) of the Family Proceedings Act 1980.1 I awarded costs to Ms Kendrick on a 2B basis and reserved leave for the parties to return to the Court if the amount payable could not be agreed.

[2]                Ms Townsend on behalf of Ms Kendrick has now filed a memorandum quantifying 2B costs in the sum of $7,359 together with disbursements of $50 and interest on that sum at 5 per cent. Ms Townsend’s calculation of the costs component were as follows:

10	Preparation for first case management conference	0.4
11	Filing memorandum for first or subsequent	0.4
case management conference or mentions hearing
13	Appearance at first or subsequent case management
conference	0.3
14	Preparation for an appearance at issues conference	0.5
24	Preparation of written submissions	1.5
29	Sealing order of judgment	0.2

Subtotal:  3.3

3.3 days at daily rate of $2,230 = $7,359

[3]                Mr Boyd responded by way of memorandum. He set out his own calculation of a “Fair Time” charge for the work undertaken by Ms Townsend, which is calculated as being $1300.00. In the alternative Mr Boyd challenged Ms Townsend’s calculation and calculated that 1.1 days, being a total of $2453.00, appropriately represented costs on a 2B basis.

Discussion

[4]                Having looked at both Ms Townsend’s and Mr Boyd’s calculations I am not satisfied that either is correct. Mr Boyd’s “Fair Time” calculation overlooks the fact that Ms Kendrick was awarded costs on a 2B basis in my judgment, and Mr Boyd has provided no reason to  depart  from  that  starting point.  There  are  also  errors  in Mr Boyd’s calculation of costs on  a 2B basis,  but  I accept  his  submission  that  Ms Townsend’s calculations also do not accurately reflect what actually occurred.

1      Boyd v Kendrick [2019] NZHC 873.

[5]                In particular, looking at Ms Townsend’s calculations, Items 10 and 11 clearly double up; the preparation of the memorandum setting out the jurisdictional issue was, in effect, the preparation for the first case management conference. Likewise, while there is no issue with Item 13 (being the appearance at the first case management conference), Items 14 and 24 are not appropriately claimed. The submissions filed by Ms Townsend for the second conference essentially reiterated the points made in her initial memorandum with the addition of quoting from and annexing the decision in W v W, referred to in my judgment.2 Ms Townsend was then required to attend the second case management conference at which I heard from Mr Boyd on the jurisdictional issue and brief submissions from Ms Townsend. Rather than Items 14 and 24, those attendances are properly classified as additional allocations of 11 and 13 (filing memorandum for second case management conference and appearance at that conference) being 0.4 and 0.3 days respectively. The total time, (including Item 29 for sealing order of judgment), is therefore 1.6 days rather than 3.3 days translating into costs of $3,568.00, together with the $50.00 disbursements sought, a total of

$3,618.00.

Decision

[6]Ms Kendrick is entitled to costs in the sum of $3,568.00 plus disbursements of

$50.00.

Powell J

2      At [9] – [10].