Carver v Carver HC Auckland CIV 2006-404-5729

[2007] NZHC 1655

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2006-404-005729

IN THE MATTER OF     the Matrimonial Property Act 1976

BETWEEN  RICHARD GEORGE CARVER AND ANNAH RAE STRETTON AS REPRESENTATIVES OF HENRY RICHARD CARVER

Appellants

AND  SHIRLEY-ANNE CARVER Respondent

Judgment:      23 February 2007 at 4.30 p.m.

COSTS JUDGMENT OF VENNING J

This judgment was delivered by me on 23 February 2007 at 4.30 p.m., pursuant to Rule 540(4) of the

High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Scannell Hardy & Co, Hastings

West Auckland Law Office, Auckland

Copy to:             G Harrison, Auckland

Michael Locke, Auckland

CARVER AND ASTRETTON HC AK CIV 2006-404-005729  23 February 2007

[1]      This case was to be heard before me as Duty Judge on Thursday, 22 February

2007 at 2.15 p.m.  On 16 February counsel for both the appellants and respondents confirmed that the appellants had abandoned the appeal and  the  only issue  that remained was the determination of costs in relation to the appeal.

[2]      Counsel have subsequently exchanged memoranda relating to the issue of costs.  Mr Locke, counsel for the respondent, seeks costs calculated on a 2B basis. They amount to $2,720.00.

[3]      Counsel for the appellants, Mr Harrison, does not take issue with either the categorisation of the proceedings on a 2B basis or with Mr Locke’s calculations.

[4]      However, he submits that the respondent (then appellant) still owes costs to the appellants (then respondents) in related appeal proceedings heard in this Court in CIV 2004-404-04060.  In dismissing that appeal on 10 December 2004 Laurenson J awarded costs on a 2B basis in the appellants’ (then respondents) favour.  Costs on a

2B basis amount to $3,190.00.   Mr Harrison submits that those costs should effectively be set off against the costs due by the appellants to the respondent in the present case and that the Court should also direct payment out of the moneys held by the Registrar as security for costs in both appeals.

[5]      Mr Locke was not counsel in the earlier proceedings and submits the matter of costs ought to be dealt with separately in each proceeding.

[6]      In a reply memorandum Mr Harrison has submitted that costs ought to have been fixed when the request was made on behalf of the appellants (then respondents) following the decision in December 2004  but  for some reason the  file was not actioned and that the matter should now be addressed.

[7]      I have reviewed this appeal file and also the earlier proceeding.  I have also had confirmation from the Registrar that security for costs has been paid in both appeals, $800.00 on this appeal and $1,450.00 on the earlier appeal.  Both sums are still held by the Registrar on interest bearing deposit.

Decision

[8]      While it may be superficially attractive to attempt a form of setting-off, I do not consider that that is a principled way to deal with the issue of costs.  Each appeal and the costs on each appeal must be dealt with separately.  On this proceedings then I award costs to the respondent calculated on a 2B basis as sought by the respondent. That amounts to an award of costs in the respondent’s favour of $2,720.00 against the appellants.  The Registrar is directed to release the security for costs of $800.00 (together with accrued interest thereon) to the respondent on account of those costs.

[9]      I do, however, agree with Mr Harrison that the issue of costs on the earlier proceeding ought to be addressed.   It is a straightforward matter.   The Judge has fixed the scale  for  costs.    It  is  simply  a  matter  of confirming  the  amount  and directing the Registrar to pay out the security paid in on those proceedings which ought to be paid out to the successful respondent to those proceedings.  I have issued

a separate short minute on those proceedings to achieve that.

Venning J