Clayton v Clayton

[2015] NZHC 1392

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CIV-2014-463-000112 [2015] NZHC 1392

IN THE MATTER OF

the Property (Relationships) Act 1976 and

the Family Proceedings Act 1980

BETWEEN

MELANIE ANN CLAYTON Cross-appellant

AND

MARK ARNOLD CLAYTON Respondent

Hearing:	On the papers
Judgment:	19 June 2015

JUDGMENT OF COURTNEY J [Re: Costs]

This judgment was delivered by Justice Courtney on 19 June 2015 at 3.30 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date……………………..

CLAYTON v CLAYTON (NO 2) [2015] NZHC 1392 [19 June 2015]

[1]      In my decision delivered on 24 March 2015 I held that, as a matter of law, the statutory scheme for final maintenance orders does not preclude a final maintenance order making an allowance for legal expenses in relation to ongoing litigation between the parties.  As a result, this ground of Mr Clayton’s appeal against a final maintenance order requiring him to pay $10,000 per month towards Mrs Clayton’s

legal and accounting fees failed.1   Mrs Clayton seeks costs on that decision.

[2]      Costs would ordinarily follow the event.   In the usual course, Mrs Clayton would be entitled to costs on a 2B basis.  Mr Clayton resists costs on the ground that since June 2014 he has paid a total of $309,019 by way of maintenance ($110,000), court costs ($129,019) and an interim distribution of relationship property ($70,000). In these circumstances he contends that a further award is inappropriate.

[3]      The provision for legal costs in the maintenance order was made in order to equip Mrs Clayton to resolve the complex relationship property litigation.  The fact that she receives maintenance payments specifically for the purpose of meeting legal costs would be a factor to take into account in deciding whether there should be a departure from the rule of awarding costs to the successful party in the context of those proceedings.   However, the current application concerns the maintenance proceedings.   In these proceedings it is not appropriate to take into account the amount that Mr Clayton has paid by way of maintenance or by way of court costs in the relationship property proceedings.   The litigation is to be treated on a normal stand-alone basis that attracts costs following the event.

[4]      There are to be costs in Mrs Clayton’s favour on a 2B basis.   I do not, however, accept the reasons advanced for the higher costs claimed in Ms Hosking’s memoranda.  The costs are to be as per the relevant section of Schedule A attached to

Tompkins Wake’s memorandum dated 12 May 2015.

P Courtney J

1      Clayton v Clayton [2015] NZHC 550. Other grounds of appeal were determined following a later hearing.