Clayton v Clayton

[2013] NZHC 1548

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CIV-2011-463-000808 [2013] NZHC 1548

IN THE MATTER             of the Property (Relationships) Act 1976

BETWEEN  MARK ARNOLD CLAYTON First Appellant

McGLOSKEY NOMINEES LIMITED Second Appellant

CHELMSFORD HOLDINGS LIMITED Third Appellant

DEBORAH JOAN VAUGHAN Fourth Appellant

BRYAN WILLIAM CHESHIRE Fifth Appellant

MARK ARNOLD CLAYTON Sixth Appellant

BRYAN WILLIAM CHESHIRE AND MARK ARNOLD CLAYTON

Seventh Appellant

ANDMELANIE ANN CLAYTON First Respondent

BRYAN WILLIAM CHESHIRE AND MARK ARNOLD CLAYTON

Second Respondent

Hearing:                   On the papers

Counsel                   R Harley for First Appellant

CR Carruthers QC for Second to Seventh Appellants
JH Hunter and J Hosking for Respondent

Judgment:                25 June 2013

MARK ARNOLD CLAYTON v MELANIE ANN CLAYTON [2013] NZHC 1548 [25 June 2013]

JUDGMENT OF RODNEY HANSEN J As to costs

This judgment was delivered by me on 25 June 2013 at 3.00 p.m., pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:          Quigg Partners, P O Box 3035, Wellington 6140 for Appellants

(Email:  [email protected]

Phillips Hosking, P O Box 227, Rotorua for Respondent

(Email:  [email protected] )

Copies to:           RP Harley, P O Box 5241, Wellington 6145 for First Appellant

(Email:  [email protected] )
CR Carruthers QC, P O Box 305, Wellington 6145 for Second – Seventh Appellants
(Email:  [email protected] )

JH Hunter, 152 Anzac Avenue, Auckland 1010 (Email:  [email protected] )

[1]      In my judgment delivered on 22 February 2013, I determined a range of issues arising out of separate appeals brought by the first appellant (Mr Clayton) and second – seventh appellants (the trustees) and a cross-appeal by the first respondent (Mrs Clayton).  I reserved costs on the basis that, if the parties were unable to agree, I would consider memoranda.1

[2]      Mrs Clayton seeks an order for costs against Mr Clayton.  She does not seek an order against the remaining appellants on the basis that, although  they  were largely unsuccessful, Mrs Clayton failed in her cross-appeal.

[3]      Ms Harley, representing all appellants and the second respondent, opposes any  order  for  costs  at  this  stage.    She  says  further  that  the  second  –  seventh appellants and second respondent are entitled to costs against the first respondent. Finally, she disputes the quantum of costs claimed by Mrs Clayton.

[4]      The first ground of opposition to an order for costs at this stage is that the parties have consented to a stay of enforcement of this Court’s judgment.   It is submitted that the grant of a stay has the effect of staying the fixing of costs.  I am unable to accept that submission.  The purpose and effect of the stay is to postpone implementation of the substantive aspects of the judgment pending determination by the Court of Appeal.  It is no impediment to costs being determined in accordance with the Rules.

[5]      Secondly, I understand Ms Harley to submit that costs should not, in any event, be fixed until the Court of Appeal has determined the issues that are the subject of appeal.   She submits that, until the appeal process is complete, it is premature to make an assessment of the extent to which the parties succeeded or failed.

[6]      I do not accept this submission either.  The general rule is that costs should follow the event and should be fixed at the time a step in the proceeding has been completed.  There has been a final determination of the appeal, subject only to the

Family Court dealing with those issues referred back for further consideration.  The

1      Clayton v Clayton HC Auckland CIV-2011-463-000808, 22 February 2013 at [155].

possibility (or even probability) that my decision will be varied by the Court of

Appeal is no reason to fix costs at that stage.

[7]      I consider that Mrs Clayton’s suggestion that there should be no order for costs in relation to the contest between the trustees and Mrs Clayton is a realistic one.  The trustees were unsuccessful in relation to the Vaughan Road Property Trust and the two education trusts.  On the remaining issues, they were, as counsel for Mrs Clayton  says,  technically  successful  but  did  not  succeed  in  substantive  terms. Against that, Mrs Clayton failed in her two cross-appeals.   With honours evenly divided, I agree that no order for costs is appropriate.

[8]      On the other hand, Mr Clayton was unsuccessful on three of the four issues he appealed.  I am satisfied that Mrs Clayton is entitled to an order for costs.

[9]      I agree that costs should be categorised on a 3C basis.  I also agree that the appeal involved legal and factual issues of sufficient difficulty and complexity to warrant second counsel.  Mrs Clayton claims costs totalling $45,406.  There appears to be duplication in the claim of $2,780 for item 54 as well as separate claims under items 10, 11 and 13.  Otherwise the claimed costs appear appropriate.

[10]     I order the first appellant to pay the first respondent costs on a 3C basis totalling $42,6026.