Clotworthy v Clotworthy - [2023] NZHC 287

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2022-488-059

[2023] NZHC 287

IN THE MATTER of the Property (Relationships) Act 1976

BETWEEN

JONATHAN ROSS CLOTWORTHY

Appellant

AND

RACHEL ALEXANDRA CLOTWORTHY

Respondent

Hearing: 2 February 2023

Counsel:

J Golightly for Appellant D E Foster for Respondent

Judgment:

24 February 2023

JUDGMENT OF BREWER J

This judgment was delivered by me on 24 February 2023 at 10 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Marsden Woods Inskip Smith (Whangarei) for Appellant Thomson Wilson (Whangarei) for Respondent

CLOTWORTHY v CLOTWORTHY [2023] NZHC 287 [24 February 2023]

Introduction

[1] Mr Clotworthy appeals a costs award of $4,762.50 made against him by Judge H J Ellis in the Family Court.1

[2]The sequence of events leading to the award of costs is:

(a)Mrs Clotworthy filed an application for division of relationship property. The process server was unable to serve Mr Clotworthy.

(b)Mrs Clotworthy applied for an order for substituted service by leaving the service documents on Mr Clotworthy’s doorstep. This was, of course, a without notice application and was granted on the papers by a Registrar.

(c)The process server was unable to get access to Mr Clotworthy’s doorstep so left the documents in Mr Clotworthy’s letterbox.

(d)Mr Clotworthy found the documents and instructed his lawyers to file a Notice of Defence.

(e)In ignorance of this, Mrs Clotworthy’s lawyers filed a second application for substituted service by placing the documents in Mr Clotworthy’s letterbox. This was granted on the papers by the Registrar.

(f)Later that day, Mr Clotworthy’s lawyers filed his Notice of Defence and gave their address as Mr Clotworthy’s address for service.

(g)Judge Ellis describes what happened next:

[9] On 3 November 2021 Thomson Wilson [Mrs Clotworthy’s lawyers] sent an email to Ms Golightly [acting for Mr Clotworthy] attaching a letter from Ms Patterson [acting for Mrs Clotworthy] which included the

1 Clotworthy v Clotworthy [2022] NZFC 7189.

documents for service and asking that she acknowledge service on the form attached.

[10] On 22 November 2021 Ms Patterson’s secretary sent a further email to Ms Golightly referring to the 3 November 2021 email and asking her to complete and return the acknowledgement of service. Ms Golightly emailed later that day asking whether service had been effected on their firm. The secretary responded by saying that as a result of the second order for substituted service they needed to re-serve the documents.

[11] Ms Golightly sent a further email a while later to say they were not authorised to accept service; she reiterated that in a further email sent later that day. The email stated:

2. Secondly, as advised in earlier correspondence, we have not been authorised to accept service of your client’s application and supporting affidavits.

3. If you wish us to take instructions on the matter, please make this request and we will do so in the usual way. We would expect the date of service to be the date on…

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.

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Details

Case: [2023] NZHC 287
Decision Date: 24 February 2023

CaseChat Overview and Summary

Jonathan Ross Clotworthy appeals a costs award made against him by Judge H J Ellis in the Family Court. The issue was whether the Family Court had jurisdiction to award costs on interlocutory applications for substituted service. The court considered whether the Family Court had jurisdiction to award costs on interlocutory applications for substituted service. The court found that the Family Court did have jurisdiction to award costs on interlocutory applications for substituted service, but only if they were opposed. In this case, the interlocutory applications for substituted service were without notice and unopposed. The court held that the rationale for awarding costs on opposed interlocutory applications did not apply to unopposed interlocutory applications. The court held that the appropriate course would have been to reserve costs until the final determination. The court held that the Judge erred in awarding costs at this stage. The court found that the Judge, overall, erred in the exercise of her discretion. The appeal is allowed. The order for costs is quashed. I direct that the issue of costs on the applications for substituted service is reserved for consideration at the conclusion of the proceeding. In my view, the issue of service of the proceeding should never have been before the Family Court. I have already said why. I have also pointed to error by both counsel. My preliminary view is that costs on the appeal should lie where they fall. If counsel wish to argue the point then submissions from the appellant are to be filed by 24 March 2023 and from the respondent by 14 April 2023.

Orders