Clayton v Clayton

[2015] NZHC 1391

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CIV-2014-463-000112 [2015] NZHC 1391

IN THE MATTER OF

the Property (Relationships) Act 1976 and

the Family Proceedings Act 1980

BETWEEN

MELANIE ANNE CLAYTON Cross-appellant

AND

MARK ARNOLD CLAYTON Respondent

Hearing:	On the papers
Judgment:	19 June 2015

JUDGMENT OF COURTNEY J [Re: Past Maintenance and 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 1) [2015] NZHC 1391 [19 June 2015]

Introduction

[1]      In my decision of 20 April 2015 I determined the remaining issues on Mr

Clayton’s appeal and Mrs Clayton’s cross-appeal against Judge Munro’s decision of

18 June 2014.  Each succeeded in part.  Mrs Clayton has sought costs on the basis that she prevailed on the major issues and the extent of Mr Clayton’s success was limited.

[2]      One of my conclusions was that the Judge erred in dismissing Mrs Clayton’s

application for variation of the 2010 consent orders so as to backdate payments to

2012.  I concluded that maintenance should have been backdated to May 2012 but that amounts paid to Mrs Clayton by way of costs orders between June 2012 and June 2014 should be offset against the backdated maintenance payable.   Counsel were to file further memoranda on this point.

Quantifying past maintenance

[3]      Mr Clayton raises two points.  He says first that the amount of maintenance should be calculated at $10,000 per month, not at the current rate of $12,700 per month because the past maintenance related only to Mrs Clayton’s ongoing legal costs.  This is not correct.  The basis on which past maintenance was awarded was that from the time the Banksia Place property was no longer available to house Mrs Clayton  and use  as  security to  fund legal  costs there was  a change in her circumstances that necessitated additional maintenance payments.   Self-evidently, the loss of the Banksia Road property did not just affect Mrs Clayton’s funding of the legal costs but also left her in a position of having to re-house herself.   Past maintenance is properly calculated on the basis of $12,700 per month.

[4]      Mr Clayton’s second point is that he paid $545,807.75 to Mrs Clayton in court costs in connection with the relationship property litigation during the period between May and June 2014.  As a result, he has paid more than the amount that would otherwise be payable during the period between June 2012 and June 2014. Mrs Clayton resists having the amount of past maintenance offset against past payments of court costs save to the extent of $12,500 which relates to indemnity

costs paid to her on an application to have the directors of Claymark found in contempt of court.  She maintains that the other payments were made in relation to costs incurred prior to May 2012 and therefore not be used to offset maintenance payable after that date.

[5]      Past maintenance was intended to address the day-to-day funding by Mrs Clayton of her ongoing costs, I consider that amounts actually received by her during the relevant period are properly offset because it is to be assumed that prior to June

2012 she had the funds to meet her living and legal costs.   It was only after the Banksia Rd property was sold that this source of funding dried up.  The result is that the amount of past maintenance to which Mrs Clayton is entitled is entirely offset by the amount she received during the same period in respect of court costs.

Costs on the appeal

[6]      My  conclusion  regarding  the  offset  of  court  costs  paid  against  past maintenance payable means that both Mr and Mrs Clayton have had some success and some failure in their respective appeal and cross-appeal and that neither can be said to have prevailed in a substantive sense.   In these circumstances, I do not consider it appropriate to make any award of costs.  Costs will lie where they fall.

Costs on the application to adduce further evidence

[7]      Mrs Clayton also seeks costs on Mr Clayton’s application to adduce further evidence filed shortly before the hearing.  The hearing of the substantive appeal was delayed because time was taken up with this issue instead.  Although the evidence was opposed in its entirety, the matter was ultimately resolved by the parties proceeding on the basis of an agreed statement of facts.   In these circumstances, I consider that costs should lie where they fall.

Application to recall judgment

[8]      Mr Clayton made an application for an order that I recall my earlier judgment dealing  with  the  inclusion  of  legal  expenses  in  a  final  maintenance  order. Mrs Clayton filed a notice of opposition to the application.   The matter was dealt

with at a telephone conference.  Mr Clayton’s counsel is correct that I indicated early on that I did not regard recalling the judgment as an appropriate course.   In the circumstances, there are to be costs on a 2B basis to Mrs Clayton for the filing of the notice of opposition.

Application to vary restraining order

[9]      Mr Clayton made an order to vary restraining orders made in 2014 that limited the amount Mr Clayton could receive from the Claymark Group.  He claimed that he could not meet his current outstanding and ongoing legal expenses from that figure and sought to vary the restraining orders so as to access further funds.  That application was vigorously opposed.   Ultimately, agreement was reached on the terms of a variation and I allowed the application and varied the restraining orders to allow payments to be made to Mr Clayton.

[10]     Mr Clayton seeks costs.  Mrs Clayton opposes a costs order.  She asserts that the application was unnecessary insofar as it related to the sale of the Claymark business.  As regards the payments to Mr Clayton she relies on a Calderbank letter dated 16 April 2015 in which she indicated her agreement to a specific sum being paid  to  him.     That  figure  was  less  than  the  amount  ultimately  agreed  and implemented  by  way  of  the  orders  made  (though  it  appears  that  none  of  the payments have yet been made as a result of funds not being available).

[11]     I consider that costs should follow the event in relation to this application. There are to be costs to Mr Clayton on a 2B in accordance with Schedule B to

Tompkin Wake’s memorandum of 12 May 2015.

P Courtney J