Burmester v Burmester
[2015] NZHC 1494
•30 June 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2014-404-002681 [2015] NZHC 1494
UNDER the Property (Relationships) Act 1976 BETWEEN
PETER BURMESTER Appellant
AND
BEVERLEY JOY BURMESTER Respondent
Hearing: 1 April 2015 Appearances:
D T Hollings QC for the Appellant
P Burmester in personJudgment:
30 June 2015
JUDGMENT OF GILBERT J
This judgment is delivered by me on 1 July 2015 at 11.30 am pursuant to r 11.5 of the High Court Rules.
..................................................... Registrar / Deputy Registrar
BURMESTER v BURMESTER [2015] NZHC 1494 [30 June 2015]
Introduction
[1] Peter Burmester appeals against a costs award of $100,100 made against him in the Family Court at Auckland by Judge Maureen Southwick QC.1 These costs related to Beverley Burmester’s application for spousal maintenance from August 2011 up to and including the hearing in the Family Court on 1, 2 and
4 October 2013. The award also covered costs in relation to Mrs Burmester’s application in separate proceedings for the sale of the family home and interim distribution of relationship property which was heard at the same time. Costs were also awarded in relation to contempt proceedings heard on 3 March 2014.
[2] The Judge accepted Mrs Burmester’s approach to the calculation of these costs, most of which were claimed in accordance with Category 3, Band B or C and the remainder under Category 2, Band B. Mrs Burmester’s calculation totalled
$81,085, of which $76,590 was Category 3 and $4,495 was Category 2.
[3] The Judge identified two major factors as justifying costs being assessed in accordance with Category 3. The first was the complexity of the arguments relating to the interim division of property including those relating to property held by the parties in Germany. The Judge described Mr Burmester’s arguments relating to the German property as “convoluted and not made in the least clear”.2 The second factor arose as a result of Mr Burmester being unrepresented. The Judge considered that this added to the complexity and length of the case. The Judge noted that Mr Burmester had displayed an inappropriate and unhelpful attitude to the Court and counsel and that this required the involvement of senior counsel.3
[4] The Judge took into account that Mrs Burmester was not wholly successful in relation to her application for past and future maintenance. The Judge therefore decreased the base award from $81,085 to $77,000. The Judge then applied an uplift
of 30 per cent for three reasons which she detailed as follows:4
1 Burmester v Burmester [2014] NZFC 7883.
2 At [26].
3 At [27].
4 At [29].
(i) The respondent has persistently refused to comply with orders of this Court and has plainly indicated an intention to refuse to co-operate. This is now well documented and has resulted in additional preparation, research and court attendance time – none of the resultant costs incurred by the applicant should have been necessary.
(ii) The respondent failed to provide sufficient documentary evidence to support his defence to the applications. For example, it was at hearing that it became necessary to require him (overnight) to provide bank account information which should plainly have been provided earlier and in the context of an affidavit of financial means and their sources. This illustrated the respondent’s approach throughout – the Court and the applicant should accept his evidence without the standard of proof normally required by the Court.
(iii) The respondent refused an offer of settlement which I find to have been reasonable in all of the circumstances.
Grounds of appeal
[5] Mr Burmester’s notice of appeal does not specify any grounds other than to assert that the Family Court “erred in law”. However, he particularised his complaints in his submissions. These may be summarised as follows:
(a) The decision violates New Zealand’s constitution.
(b)There are errors in the calculation which, if corrected, would reduce the base costs from $81,085 to $14,880.
(c) The reduction by only 5 per cent to reflect that Mrs Burmester was not
wholly successful is “inexplicable”.
(d)The Judge erred in principle and was plainly wrong in increasing costs.
Approach on appeal
[6] A decision to award costs involves the exercise of a discretion taking into account a myriad of factors that the trial Judge is best placed to assess. The Court on
appeal will always hesitate before disturbing a decision as discretionary as one involving costs. This is why appeals against costs decisions seldom succeed.
[7] The Court cannot interfere with a costs award unless it is shown that the Judge took into account irrelevant considerations, overlooked relevant considerations, applied an incorrect principle or was plainly wrong.
Did the costs award violate New Zealand’s constitution?
[8] Mr Burmester notes that the substantive judgment of Judge Southwick, which preceded her costs judgment, the subject of this appeal, was also appealed to this Court. Moore J dismissed that appeal and awarded costs for the appeal on a Category 2, Band B basis.5 Mr Burmester submits that this judgment is binding on the Family Court and that “not altering the appealed decision to Category 2 Band B would be a clear violation by forbearance of New Zealand’s Constitution”.
[9] This submission overlooks that an appeal to this Court involves a separate proceeding which must be categorised appropriately for costs purposes depending on the nature of the appeal and any other relevant circumstances. An appeal may be straightforward and properly categorised as Category 2 even though the proceeding in the lower Court was properly a Category 3 proceeding. An example would be where highly complex proceedings in the lower Court are appealed on a narrow issue involving no particular complexity or difficulty. The fact that Moore J determined that costs on the appeal he dealt with should be assessed in accordance with Category 2 Band B does not mean that Judge Southwick was wrong to categorise the proceedings she dealt with as Category 3 or to assess some of the steps taken in the Family Court as falling within Band C.
[10] The Judge’s costs order does not violate New Zealand’s constitution. This ground of appeal fails.
5 PB v BJB [2015] NZHC 774.
Are there errors in the calculation of the base costs?
[11] Mr Burmester claims that some steps have been claimed for twice or three times. In particular, he says that the costs claimed for preparing the statement of claim, filing a memorandum for a judicial issues conference and appearance at that conference, items 1 to 3 in Mrs Burmester’s schedule, are duplicated elsewhere. He says that item 1 is the same as items 5 and 6, described as application for interim distribution and sale of the family home and amended statement of claim for an order for maintenance with supporting affidavit and updated declaration of financial means. He says that item 2 is the same as items 7 and 11, which are described as memorandum seeking directions dated 21 November 2012 and memorandum dated
12 April 2013 for judicial conference. He also says that item 3 is the same as item 12 which relates to an appearance at a judicial conference on 15 April 2013.
[12] Mr Burmester is plainly wrong about this. Items 1, 2 and 3 are for steps taken from August to November 2011. They are separate from the steps referred to in items 5, 6, 7, 11 and 12 which were taken from 29 October 2012 to 15 April 2013.
[13] Mr Burmester says that items 5 and 6 are the same and can only be claimed once. This is not correct. Item 5 relates to an application for interim distribution and sale of the family home whereas item 6 is for the amended statement of claim and supporting affidavit and declaration of financial means filed for the purposes of spousal maintenance.
[14] Mr Burmester’s next point is that item 7 is the same as item 11. This is also wrong. Item 7 is for a memorandum dated 21 November 2012 whereas item 11 is for a memorandum dated 12 April 2013 for a judicial conference held on
15 April 2013.
[15] Mr Burmester submits that, if anything, he should be entitled to costs for steps 8 and 9 because the outcome was that Mrs Burmester accepted offers he had made resulting in consent orders. I can see no error in the Judge’s approach to this issue, other than in relation to her categorisation of the maintenance proceedings, which I deal with shortly. The Judge considered that Mrs Burmester was, overall, successful in relation to her maintenance application and that Mr Burmester resisted
the application on insupportable grounds. However, the Judge recognised that Mrs Burmester did not succeed for the full amount claimed, particularly in relation to past maintenance. This is why the Judge reduced the base award from $81,085 to
$77,000.
[16] I do, however, consider that the Judge was led into error when she acceded to Mrs Burmester’s submission that costs for each step should be categorised separately, depending upon whether Ms Chambers QC was directly involved or not, rather than the proceeding as a whole. The proper approach is to categorise the proceeding, not each step in the proceeding. Ms Chambers accepts this. She acknowledges that the maintenance proceedings ought to have been Category 2 and the relationship property proceedings, Category 3.
[17] Ms Chambers helpfully filed a memorandum following the conclusion of the hearing setting out the adjustments required to reflect this. This results in items 8, 9 and 10 being adjusted from Category 3 to Category 2 yielding a difference of $2,925. This also affects the 5 per cent deduction and the 30 per cent uplift. Ms Chambers calculates that the overall adjustment required is the sum of $3,572.40 which Mrs Burmester will need to reimburse to Mr Burmester, he having already paid the costs. Mr Burmester does not take issue with the calculation and I accept that it is accurate.
[18] Whether the relationship property proceedings were properly categorised as Category 3 is a matter of judgment in all of the circumstances of the case. It is obvious that there are complicated features in this case, with movable and immovable property situated overseas. Although it is by no means decisive, it is relevant to note that both parties considered the complexity of the legal and factual issues and the amounts at stake justified them engaging the services of senior
counsel.6 There is no basis to interfere with the Judge’s assessment that the
relationship property proceedings are Category 3 proceedings for costs purposes while the maintenance proceedings should be treated as Category 2.
6 Mr Burmester was formerly represented by a senior silk.
Was the reduction of 5 per cent to reflect Mrs Burmester’s partial success
wrong?
[19] Mr Burmester submits that a 5 per cent reduction does not sufficiently recognise the relative success of the parties in the proceedings. He says that Mrs Burmester received approximately 40 per cent of the amount she claimed for future maintenance, 35 per cent of what she claimed for past maintenance and was unsuccessful in obtaining an order for interim distribution. He submits that the other orders Mrs Burmester obtained are of little moment and do not affect the overall picture that the parties achieved comparable success.
[20] The Judge accepted that Mrs Burmester succeeded to a lesser extent than claimed, particularly in relation to past maintenance. However, the Judge noted that Mr Burmester resisted the making of any award. The Judge described this as a “plainly unsupportable approach”.7 She noted that she had found against Mr Burmester on all of the grounds he raised. She described the respondent’s approach as unrealistic and unreasonable. The Judge also took into account that Mrs Burmester succeeded in her application for an order for sale of the family home and a distribution of the proceeds. She noted that these applications were “robustly resisted” by Mr Burmester on grounds which she rejected.8
[21] Whether a deduction was warranted and, if so, by what amount, was a matter for the Judge to assess in the exercise of her discretion. An overall deduction of
5 per cent in the circumstances of this case cannot be said to be outside the scope of that discretion. In my view, it would have been open to the Judge to make no deduction from the base costs had she considered that appropriate. This ground of appeal also fails.
Did the Judge err in principle and was she plainly wrong to increase costs?
[22] Mr Burmester challenges the uplift of 30 per cent on the basis that Moore J
did not increase costs in relation to the substantive appeal. Mr Burmester again relies on the constitution as preventing the uplift. This is the same point as
7 At [20].
8 At [22].
Mr Burmester’s first ground of appeal and must be dismissed for the same reasons. The Judge was entitled to apply an uplift in the circumstances she identified. The extent of the uplift was within the range of the Judge’s discretion. There is no basis upon which it can be interfered with.
Result
[23] The appeal is dismissed save for the correction to the categorisation of the costs claimed for items 8, 9 and 10 in the schedule resulting in a reduction to the costs award in the sum of $3,572.40.
[24] The appellant is to pay the respondent’s costs on this appeal calculated on a
Category 2, Band B basis.
M A Gilbert J
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