Burnside v Burnside

[2023] NZHC 831

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2023-470-0003

[2023] NZHC 831

BETWEEN

ROBERT MICHAEL BURNSIDE and VERA IRENE BURNSIDE
Appellants

AND

STEPHEN JOHN BURNSIDE

First Respondent

WAI-RONGOA AROHANUI LIMITED

Second Respondent

Hearing:	On the papers
Appearances:	D M Fraundorfer and S A Stretton for Appellant M S King for Respondents
Judgment:	19 April 2023

JUDGMENT OF LANG J

[on costs]

This judgment was delivered by me on 19 April 2023 at 3 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

Solicitors:

Holland Beckett Law, Tauranga M S King, Tauranga

BURNSIDE v BURNSIDE [2023] NZHC 831 [19 April 2023]

[1]    The present appeal relates to the decision of Judge Ingram in the District Court to transfer the proceeding to this Court because he considered it raised issues in relation to which the District Court did not have jurisdiction. Following the abandonment of the appeal counsel have been unable to reach agreement regarding costs. The Registrar has referred the proceeding to me to deal with that issue.

[2]    The respondents seek costs on a category 2B basis totalling $1,590, whilst counsel for the appellants contends that costs should either lie where they fall or be fixed following determination of the substantive proceeding.

[3]    I am satisfied that it would not be appropriate to allow costs to lie where they fall or be fixed once the substantive proceeding has been determined. The appropriate course of action is to determine the issue now because, so far as possible, the determination of costs should be both predictable and expeditious.1

[4]    The respondents are the successful parties given that the appellants ultimately abandoned the appeal. The appellants should therefore contribute to the respondents’ costs.2 However, the respondents did not file any documents in response to the appeal, so they are not entitled to the amount claimed for this step ($477).

[5]    I therefore award the respondent costs calculated at .2 of a day each for preparation for the first case management conference and filing a memorandum for that conference. In addition, I award the respondent costs calculated at .3 of a day for the appearance at the first case management conference.

[6]This means the respondents will be entitled to an award of costs totalling

$1,113. I note that they have not incurred any disbursements.

Lang J

1      High Court Rules 2016, r 14.2(1)(g).

2      Rule 14.2(1)(a).