Clayton v Clayton - [2015] NZHC 267

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, 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 ROTORUA REGISTRY

CIV-2014-463-000067 [2015] NZHC 267

IN THE MATTER OF the Property (Relationships) Act 1976

BETWEEN

MARK ARNOLD CLAYTON Appellant

AND

MELANIE ANN CLAYTON Respondent

On papers

Judgment: 25 February 2015

RESERVED JUDGMENT OF DOBSON J (Costs revisited)

[1] At the conclusion of my judgment dismissing Mr Clayton’s appeal from costs orders made against him in the Family Court in these proceedings, I ordered costs on a 2B basis in favour of Mrs Clayton, consistently with the outcome of the appeal.1

[2] Subsequently, solicitors for Mrs Clayton requested that I reconsider the basis for the costs order I had made, in light of a previously undisclosed exchange of Calderbank letters.

[3] Mrs Clayton’s Calderbank offer was made on 30 October 2014, about a fortnight before the hearing on 12 November 2014. Had Mr Clayton accepted that

1 Clayton v Clayton [2014] NZHC 3086.

CLAYTON v CLAYTON [2015] NZHC 267 [25 February 2015]

offer, it would have improved his position, relative to the position that pertains

subsequent to my judgment on the appeal, to the following extent:

·
Mrs Clayton would have given him a credit of $8,000 for previous costs

liabilities he had been ordered to pay to her. (Mrs Clayton was not

volunteering to make a cash payment, but rather to offset the credit

against Mr Clayton’s subsequent obligations to distribute relationship property.)

·

Mrs Clayton would not seek costs on the present appeal, so that they would lie where they fell.

·

Mr Clayton would have avoided the costs of his solicitors’ and senior counsel’s preparation for, and appearance at, the full day hearing of the

appeal on 12 November 2014.

[4]

M

r Clayton rejected the offer and counter-offered on terms that he would

compromise his appeal for a cash repayment of some $158,000 of the Family Court costs orders that he has paid to Mrs Clayton.

[5] The outcome brings the making of the offer and its rejection within r 14.11(3)(b) of the High Court Rules. The consequence is a presumptive entitlement to costs (which I have already ordered in favour of Mrs Clayton), and it is a factor that might properly influence the Court’s decision in granting increased costs. However, it is only one factor, and I do not treat it as determinative in this protracted and extremely hard-fought relationship property litigation.

[6] Once reconsideration of the costs order I made without submissions is warranted because of the Calderbank offer, another factor relevant to the appropriate costs order is the somewhat obdurate stance Mr Clayton adopted in insisting that the hearing of the appeal proceed. The parties were awaiting a decision from the Court of Appeal on the substantive issues in the proceeding, which could alter the outcome on the costs entitlement…

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 Clayton v Clayton

Details

AGLC: Clayton v Clayton [2015] NZHC 267
Case: [2015] NZHC 267
Decision Date: 25 February 2015

CaseChat Overview and Summary

In the case of Clayton v Clayton, the High Court of New Zealand addressed a dispute between Mark Arnold Clayton and Melanie Ann Clayton concerning relationship property. Mark Clayton appealed against costs orders made in the Family Court, which were subsequently reviewed in light of an undisclosed Calderbank offer made by Melanie Clayton. The offer included a credit of $8,000 for costs liabilities and waived costs on the present appeal if Mark Clayton accepted it. However, Mark Clayton rejected the offer and instead proposed a counter-offer for a cash repayment of $158,000 of the Family Court costs orders. The court found Mark Clayton's tactics to be dilatory and obstructive throughout the proceedings, which contributed to the decision to increase the costs award.

The legal issues before the court included the appropriateness of the initial costs order and whether it should be revised in light of the Calderbank offer. The court considered the terms of the offer, the rejection of the offer, and Mark Clayton's conduct during the appeal. The court also weighed the overall conduct of the parties and the history of the litigation. Ultimately, the court determined that an increase in the costs award was warranted, considering the factors involved, and set the total costs award at $21,760.65, with an additional $120.38 for disbursements.

Orders