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…

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 Burmester v Burmester

Details

AGLC: Burmester v Burmester [2018] NZHC 823
Case: [2018] NZHC 823
Decision Date: 30 April 2018

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, the case of Burmester v Burmester involved a dispute between Peter Burmester and Beverley Joy Burmester, along with Anneliese Burmester and Sarah Burmester. The primary issue was the determination of costs and disbursements sought by Beverley Joy Burmester in relation to an appeal and cross-appeal from a Family Court decision. The appeal dealt with various relationship property issues under the Property (Relationships) Act 1976. The legal issues centred on the appropriate category for the proceeding, the reasonable time for each step in the proceedings, and the appropriateness of specific disbursements claimed by the respondents. The court needed to decide whether the proceeding warranted a category 3 classification, assess the reasonableness of time spent on various steps of the proceeding, and evaluate the claimed disbursements.

The court found that the proceeding was indeed a category 3 matter, given its complexity and the special skill and experience required for the High Court. Katz J determined that while some steps of the proceeding warranted time allocations under band C, others were reasonable under band B. Specific reductions were made to certain items claimed under bands A and B. The court held that the claimed disbursements were appropriate and necessary for the proceedings. Finally, Katz J ruled that if Peter Burmester failed to pay the awarded costs within ten working days, the costs should be deducted from his half-share of the parties’ joint ANZ swiss franc account.

In conclusion, the court ordered that Peter Burmester pay Beverley Joy Burmester the sum of $47,190 in costs, along with $513.38 in disbursements, totalling $47,703.38. Should Peter Burmester fail to pay this amount within ten working days of the judgment, the court permitted the deduction of costs from his half-share of the joint ANZ swiss franc account.

Orders