Brain v Harwood

[2014] NZHC 2067

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV 2013-470-000572 [2014] NZHC 2067

IN THE MATTER

the Family Protection Act 1955

BETWEEN

ALAN WESLEY BRAIN Appellant

AND

CLIVE HARWOOD First Respondent

DAVID CLIVE HARWOOD and ALAN WESLEY BRAIN as Executors of the Will of VIOLET MARY BRAIN

Second Respondent

On the papers
Judgment:	29 August 2014

COSTS JUDGMENT OF GILBERT J

This judgment is delivered by me on 29 August 2014 at 2 pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

BRAIN v HARWOOD & ANOR [2014] NZHC 2067 [29 August 2014]

[1]      In a judgment delivered on 22 May 2014, I dismissed the appellant’s appeal from a decision of the Family Court at Tauranga which upheld the first respondent’s claim for further provision from their mother’s estate under the Family Protection Act 1955.  This judgment deals with the issue of costs.

[2]      The first respondent seeks indemnity costs contending: (a)     the appeal had no merit;

(b)the notice of appeal did not particularise the points on appeal so that these had to be distilled from the written submissions, increasing the preparation time required; and

(c)       the appellant took a “scattergun” approach to the appeal rather than

focusing on alleged errors in the judgment.

[3]      Alternatively, if the Court is not prepared to award indemnity costs, the first respondent seeks costs calculated on a 2B basis.

[4]      The appellant disputes the first respondent’s contentions regarding the way he conducted the appeal.   He submits that indemnity costs are not appropriate in this case.  However, the appellant does not oppose an award of 2B costs and he agrees with the first respondent’s calculation of these.

[5]      In my, there is nothing about this case that would warrant a departure from scale costs. Although I accept that the points raised by the appellant in support of his appeal were wide-ranging and somewhat unfocused, I do not consider that the way he conducted his appeal would justify an award of indemnity costs.  Such awards are reserved for exceptional cases.

[6]      Accordingly, the first respondent is entitled to costs on the appeal calculated on a 2B basis in accordance with Mr Brittain’s memorandum.

M A Gilbert J