Clayton v Clayton
[2015] NZCA 330
•24 July 2015
| NOTE: PURSUANT TO S 169 OF THE FAMILY PROCEEDINGS ACT 1980 AND 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 |
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA438/2013 [2015] NZCA 330 |
| BETWEEN | MELANIE ANN CLAYTON |
| AND | MARK ARNOLD CLAYTON BRYAN WILLIAM CHESHIRE AND MARK ARNOLD CLAYTON (as trustees of the Claymark Trust) |
| CA473/2013 | |
| BETWEEN | MCGLOSKEY NOMINEES LIMITED (AS TRUSTEE OF THE DENARAU RESORT TRUST) DEBORAH JOAN VAUGHAN (as trustee of the Sophia No 7 Trust) CHELMSFORD HOLDINGS LIMITED (as trustee of the Chelmsford Trust) BRYAN WILLIAM CHESHIRE (as trustee of the Lighter Quay 5B Trust) |
| AND | MELANIE ANN CLAYTON |
| CA474/2013 | |
| BETWEEN | MARK ARNOLD CLAYTON MARK ARNOLD CLAYTON (as trustee of the Vaughan Road Property Trust) BRYAN WILLIAM CHESHIRE AND MARK ARNOLD CLAYTON (as trustees of the “SC” Education Trust and the “AC” Education Trust) |
| AND | MELANIE ANN CLAYTON |
| Court: | Ellen France J, Randerson and White JJ |
Counsel: | D A T Chambers QC for Appellant in CA438/2013, Respondent in CA473/2013 and CA474/2013 |
Judgment: | 24 July 2015 at 3:00pm |
JUDGMENT (NO 2) OF THE COURT
COSTS
A The appellants in CA473/2013 and CA474/2013 must pay the respondent Melanie Ann Clayton costs and disbursements of $53,399.35.
BWe also direct the Registrar to pay to Melanie Ann Clayton the amount of $11,760 held as security for costs in CA438/2013 and CA474/2013 and any accumulated interest thereon.
C The sum of $5,880 and any accumulated interest paid by Mark Arnold Clayton as first appellant in CA474/2013 may be set-off against the costs order of $53,399.35.
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REASONS OF THE COURT
(Given by Randerson J)
In our substantive judgment delivered on 26 February 2015, we made an order for costs.[1]
[1]Clayton v Clayton [2015] NZCA 30, [2015] NZFLR 233 at [276].
At counsels’ request, we clarified the intention of the order in a minute of the Court issued on 3 June 2015.
Counsel are now agreed that the quantum of costs ordered by the Court in favour of Mrs Clayton is $53,399.35. There is also no dispute that the amount paid into Court by way of security for costs in respect of two of the appeals (CA438/2013 and CA474/2013) amounts to $11,760. Mrs Clayton now requests that the amount ordered in her favour by way of costs and the amount held for security for costs be paid to her.
Mr Clayton and the trustees of the various family trusts who are parties to these appeals oppose the payment of any costs to Mrs Clayton. They claim that they have a set-off because, in terms of a maintenance order made in the Family Court, Mr Clayton has been paying to her an amount of $10,000 per month since June 2014 to cover legal and accounting costs.[2] It is said that the total amount paid up to 25 June 2015 amounted to $130,000. It is said further that this exceeds the costs awarded in this Court. In addition, reference is made to other sums said to have been paid in the course of other disputes between the parties. In response, Mrs Clayton says through counsel that her actual legal and accounting costs are much higher than the amount paid under the maintenance order. She also says that the other payments Mrs Clayton has received have no bearing on her right to recover the costs orders made in this Court.
[2]Clayton v Clayton [2014] NZFC 4193.
We have decided that the agreed amount for costs in this Court and the amount held by way of security for costs should both be paid to Mrs Clayton. First, the costs ordered in this Court and the amount held by way of security for costs are relatively minor sums in a much larger dispute between the parties which does not show any sign of abating. In particular, leave to appeal to the Supreme Court has been granted against our judgment and the amounts at stake run to millions of dollars. Second, it is apparent that there are other ongoing disputes between the parties that have not yet been resolved. Third, the sum of $10,000 per month by way of maintenance for Mrs Clayton was not directed towards specific costs orders. Rather, it was justified because the litigation was so expensive as to prevent Mrs Clayton from becoming self‑supporting and being able to meet her reasonable needs.[3] Fourth, if Mrs Clayton’s assertion is right, then the costs award made in this Court fall well short of her actual solicitor and client costs. Finally, whatever the position may be in that respect, when all litigation between the parties is finally concluded, it will be necessary for a full accounting of claims and cross-claims between the parties. Any adjustment that may then be required can be made in that context.
Result
[3]See, for example, Courtney J’s observation at [45] of her judgment in Clayton v Clayton [2015] NZHC 765, [2015] NZFLR 501 on appeal from the Family Court.
For these reasons, we order that the appellants in CA473/2013 and CA474/2013 pay the respondent Melanie Ann Clayton costs and disbursements of $53,399.35.
We also direct the Registrar to pay to Melanie Ann Clayton the amount of $11,760 held as security for costs in CA438/2013 and CA474/2013 and any accumulated interest thereon.
The sum of $5,880 and any accumulated interest paid by Mark Arnold Clayton as first appellant in CA474/2013 may be set-off against the costs order of $53,399.35.
Solicitors:
Phillips Hosking, Rotorua for Appellant in CA438/2013, Respondent in CA473/2013 and CA474/2013
Tompkins Wake, Hamilton for Respondents in CA438/2013 and Appellants in CA473/2013 and CA474/2013
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