Carrington v Carrington - [2014] NZHC 3388

NOTE: ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO
11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-3775 [2014] NZHC 3388

IN THE MATTER of the Declaratory Judgments Act 1908, declarations at common law and orders under the inherent jurisdiction of the High Court that are analagous to orders under the Protection of Personal and Property Rights Act 1988

BETWEEN

YVONNE CARRINGTON Applicant

AND

BRIAN CARRINGTON Respondent

Hearing: On the papers

Counsel:

J G Miles QC, S A Grant and B R Saldanha for Applicant
A H Waalkens QC, A Ferguson and F Monteiro for Respondent
K Davenport QC for Interested Party A
R B Stewart QC, S M Hunter and B Tompkins for Interested
Parties B and C

Judgment:

19 December 2014

JUDGMENT OF KATZ J (Costs)

This judgment was delivered by me on 19 December 2014 at 5:00 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors: Harmos Horton Lusk, Auckland
Wilson Harle, Auckland
Gilbert Walker, Auckland

Counsel: J G Miles QC, Auckland
H Waalkens QC, Auckland R B Stewart QC, Auckland K Davenport QC, Auckland S A Grant, Auckland

Copy to: M Sandelin, Minter Ellison Rudd Watts, Auckland

CARRINGTON v CARRINGTON [2014] NZHC 3388 [19 December 2014]

Table of Contents

Introduction ............................................................................................................... [1] PART ONE: COSTS AS BETWEEN MR AND MRS CARRINGTON ............... [8] Overview of Mr Carrington’s position in respect of costs ..................................... [8] Overview of Mrs Carrington’s position in respect of costs.................................. [11]
My view as to the correct approach to determining the costs issues as
between Mr and Mrs Carrington........................................................................... [15]

Should Mr Carrington be awarded the costs of the entire proceedings? [16] Are increased costs appropriate? [24] Are indemnity costs appropriate for steps that occurred after 1 February 2014? [34] Summary of approach to costs issues as between Mr and Mrs Carrington [40]

Interlocutory applications where costs have yet to be determined ..................... [42]

Application for freezing orders in CIV-2011-404-2545  [44]
Applications by Mrs Carrington dated 24 June 2011 for priority fixture,
directions for service and confidentiality  [47] Application by Mrs Carrington dated 21 October 2011 for medical
examination of Mr Carrington  [48]
Application by Mr Carrington dated 7 December 2011 for stay of White J’s
judgment pending appeal  [53]
Application by Mrs Carrington dated 15 May 2012 for supplementary
directions related to examination of Mr Carrington  [56]
Judgment of Woodhouse J dated 5 September 2012 in a related Family Court
Appeal  [59] Application by Mr Carrington for leave to admit Darlow affidavit  [60] Application by Mr Carrington for separate question and priority  [62]
Application by Mrs Carrington dated 6 November 2013 seeking particular
discovery  [65]
Application by Mrs Carrington dated 25 February 2014 seeking interim
injunction  [66]
Application by Mrs Carrington dated 4 March 2014 for leave to further amend
her originating application  [71]
Application by Mr Carrington to strike out the proceedings for lack of
jurisdictio

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.

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Details

Case: [2014] NZHC 3388
Decision Date: 19 December 2014

CaseChat Overview and Summary

In Carrington v Carrington the parties were a married couple who had been separated for several years. The wife filed proceedings in the High Court seeking to have her husband’s will and enduring powers of attorney set aside on the basis that he had been unduly influenced and lacked the requisite mental capacity to execute them. The husband opposed the application and applied to strike it out for lack of jurisdiction. The wife appealed the striking out of the proceedings but later abandoned the appeal. The only issue remaining was that of costs. The wife was ordered to pay the husband costs of $122,559.43 and interested parties (the husband’s adult children from a previous marriage) costs of $76,740.79. The husband was ordered to reimburse the wife $78,398.23 in respect of costs incurred in relation to the wife’s minor child. Katz J held that the wife was responsible for bringing the proceedings in the wrong forum and that she should bear the costs of the proceedings. Costs should follow the event and be predictable and expeditious. The wife’s failure to bring the proceedings in the correct forum resulted in wasted costs. Katz J concluded that it was appropriate to award increased costs to reflect the wasted costs that would result from the proceedings being struck out. Costs should be awarded to the successful party in respect of specific interlocutory applications, unless there were good reasons not to do so. The wife’s costs were further increased by 25 per cent to take account of the significant wasted costs arising from the proceedings being brought in the wrong forum. The husband was awarded indemnity costs in respect of his successful strike out application, on the basis that the costs of preparing and arguing the application were almost entirely wasted.

Orders