Burmester v Burmester

[2018] NZHC 823

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-000485

[2018] NZHC 823

UNDER

the Property (Relationships) Act 1976

BETWEEN

PETER BURMESTER

Appellant

AND

BEVERLEY JOY BURMESTER

First Respondent

ANNELIESE BURMESTER SARAH BURMSTER

Second Respondents

Hearing:

On the papers

Counsel:

Appellant in person

D Chambers QC for First Respondent

Judgment:

30 April 2018

JUDGMENT OF KATZ J

[Costs]

This judgment was delivered by me on 30 April 2018 at 12:30pm pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:           Dyer Whitechurch, Auckland Counsel:          D Chambers QC, Barrister, Auckland Copy to:    P Burmester (Appellant)

BURMESTER v BURMESTER [2018] NZHC 823 [30 April 2018]

Introduction

[1]    On 2 February 2018, I delivered a judgment (“Judgment”) in which I dismissed Mr Burmester’s appeal from a decision of the Family Court in relation to various relationship property issues.1 In addition, Mrs Burmester was largely successful in her cross-appeal (which was of much more limited scope).

[2]    Mrs Burmester now seeks costs (and disbursements) in respect of the appeal and cross-appeal, in the sum of $60,903.38.

[3]    Costs are sought on a 3C basis, with the exception of certain items that have been reduced, namely:

(a)Item 24, claimed twice (in relation to different memoranda), which is calculated as being, in the first instance, below band A, and in the second, between band A and B.

(b)Item 11, which has been allocated a band B daily rate.

[4]    Mrs Burmester seeks an order that the award of costs be deducted from      Mr Burmester’s half-share of the parties’ joint ANZ swiss franc account, should he fail to pay within 10 days of the date of this costs judgment. That order is sought on the basis that Mr Burmester has never paid a costs order directly on request or demand. All costs orders made against him have had to  be enforced by the Court giving    Mrs Burmester authorisation to deduct funds from the ANZ joint swiss franc account.

Assessment of costs

[5]    Costs are at the discretion of the Court. They must be ordered, however, on a principled basis.2 The general rule is that costs follow the event,3 and I see no basis for departing from that approach in this case.

1      Burmester v Burmester [2018] NZHC 47.

2      High Court Rules 2016, r 14.1(1)–(2); and Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [7]–[8].

3      See r 14.2 of the High Court Rules 2016; Manukau Golf Club Inc v Shoye Venture Ltd, above n 2, at [8].

What is the appropriate category for the proceeding?

[6]    Rule 14.2(1)(b) of the High Court Rules provides that an award of costs should reflect the complexity and significance of the proceeding. The High Court Rules provides for three categories of proceedings for the purposes of assessing costs.4 The normal course is to assess the category of a proceeding at the outset. Moore J has previously categorised this proceeding as category 3. Category 3 proceedings are proceedings that, because of their complexity or significance, require counsel to have special skill and experience in the High Court.5 I am satisfied that category 3 remains the appropriate skill classification. The “daily recovery rate” for category 3 proceedings is $3,300.6

What is a reasonable time for each step in the proceeding for which costs are claimed?

[7]    Having determined the appropriate skill category, it is then necessary to determine a reasonable time allocation for each step in the proceedings. The three time bands are:7

(a)band A, if a comparatively small amount of time is considered reasonable;

(b)band B, if a normal amount of time is considered reasonable; or

(c)band C, if a comparatively large amount of time for the particular step is considered reasonable.

[8]    Unlike categories, which are set prospectively, the appropriate time band is assessed retrospectively, when determining costs in relation to a particular step. Only then can an informed decision be made regarding a reasonable time allocation for each step in the proceeding. A blanket assessment for time banding does not accord with the High Court Rules, unless it reflects that the case is an average one requiring a

4      High Court Rules 2016, r 14.3.

5      High Court Rules 2016, r 14.3.

6      High Court Rules 2016, sch 2.

7      High Court Rules 2016, r 14.5

normal amount of time for each step.8 While the complexity of a proceeding is addressed through categorisation under r 14.3, it can also be relevant to the assessment of reasonable time.9 The amount or “volume” of the material or evidence that may need to be prepared is also relevant to assessing reasonable time.10

[9]    Ms Chambers states in her costs memorandum that “[t]his Court directed on 17 May 2017 that this appeal is categorised as a category 3C proceeding”. That is incorrect. Although Moore J categorised the proceedings as Category 3, his Honour (appropriately) did not specify what band would reflect a reasonable amount of time for each step in the proceedings.

[10]   First, I note that there were a significant number of grounds of appeal. The Judgment addresses twelve grounds of appeal and Mr Burmester also sought to raise other matters, that  were  also  addressed  briefly.  Both  parties’ submissions  were 31 pages in length and raised issues that were both factually and legally complex. I therefore consider that a reasonable time for the preparation of case on appeal, the written submissions for the substantive appeal, and appearance at the hearing is the time specified under band C. The time spent on these matters would have been beyond what could reasonably be expected in a proceeding of this type.

[11]   On the other hand, I do not consider that the proceeding required a comparatively large amount of time for matters such as commencing the cross-appeal and responding to the appeal, or preparing for and attending pre-hearing conferences and hearings. In respect of those matters, I consider a normal amount of time is reasonable, calculated at band B.

[12]   There is one further item to consider, which relates to the preparation of certain memoranda (item 24). On the basis of Ms Chambers’ allocation of costs, the first reference to item 24 is claimed a rate below band A, and the second is claimed at a rate somewhere between band A and B. I am satisfied (and Ms Chambers would

8      Paper Reclaim Ltd v Aotearoa International Ltd [2007] NZCA 544, (2007) 18 PRNZ 743 at [35]; See also Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2010] NZCA 400, (2010) 24 NZTC 24,500 at [161].

9      Mary Moodie Family Trust Board v Attorney-General [2016] NZHC 755, (2016) 23 PRNZ 180 at [6].

10     Mary Moodie Family Trust Board v Attorney-General, above n 9, at [6].

appear to agree) that band B would be an unreasonably large allocation of time for preparation of the relevant memoranda. Band A is therefore the appropriate band. In respect of the first reference to item 24 three separate memoranda were filed. In my view, however, it is appropriate to only allow a total time allocation for those memoranda of 1.0 day (as Ms Chambers has done in her schedule) rather than 1.5 days that would otherwise be allocated under band A.

[13]   Taking the various matters I have outlined into account, the appropriate categorisation of the various steps is as follows:

Schedule	Activity	Band	Days	Amount
52	Commencement of cross-appeal	B	1	$3,300
53	Commencement of response to appeal	B	0.5	$1,650
10	Preparation for first case management conference	B	0.4	$1,320
11	Filing memorandum for first case management   conference   (held   on 10 May 2017)	B	0.4	$1,320
12	Appearance at  mentions  hearing  on 29 May 2017	B	0.2	$660
13	Appearance     at     case     management conference on 10 May 2017	B	0.3	$990
24	Preparation of written submissions in opposition to applications for extension of  time   filed   on   4   August   2017, 1 September 2017 and in regard to the inadequacy of the appellant’s bundle, on 2 October 2017	A	1.0	$3,300
55	Preparation of case on appeal	C	2	$6,600
56	Preparation of written submissions for substantive appeal	C	6	$19,800
57	Appearance of counsel at appeal hearing on 11 and 12 October 2017	C	2	$6,600

24	Preparation    of    post-hearing    written submissions on issues in reply	A	0.5	$1,650
Total:                14.3        $47,190

[14]   The appropriate award of costs is therefore $47,190, not including disbursements.

Disbursements

[15]Mrs Burmester also seeks disbursements of $513.38 as follows:

Sealing the original copy of any judgment	$50
Fees for interpreter (Anita Goetthans)	$50
Costs of binding bundle	$213.38
Filing fee in regard to the cross-appeal	$200
Total disbursements:  $513.38

[16]   I am satisfied that the disbursement items Mrs Burmester has claimed are all appropriate.

Deduction of costs from the ANZ account

[17] I am satisfied that it is appropriate that an order be made permitting costs to be deducted from the ANZ account, should Mr Burmester fail to pay the costs award within 10 working days, for the reasons set out at [4] above.

Result

[18]I order that:

(a)Mr Burmester pay costs to Mrs Burmester in the sum of $47,190 together with disbursements of $513.38 (totalling $47,703.38).

(b)The award of cost is to be deducted from Mr Burmester’s half-share of the ANZ joint swiss franc account, should he fail to pay the required sum within 10 working days of the date of this decision.

Katz J