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Craig v Keith

Craig v Keith

Case [2017] NZHC 2664 31 October 2017

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV2015-404-002831 [2017] NZHC 2664

IN THE MATTER OF the Family Proceedings Act 1980

BETWEEN

CRAIG Appellant

AND

KEITH Respondent

Hearing: On the papers

Judgment:

31 October 2017

COSTS JUDGMENT OF DUFFY J

This judgment was delivered by me on 31 October 2017 at 4.30 pm pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar

Solicitors/Counsel:
Anderson Creagh Lai, Auckland
Grove Darlow, Auckland
V A Crawshaw, Barrister, Auckland
Jo Hosking, Barrister, Remuera

CRAIG v KEITH [2017] NZHC 2664 [31 October 2017]

Introduction

[1] Mr Craig and Ms Keith were formerly in a relationship but are now separated. On 25 July 2017, I allowed Mr Craig’s appeal against a decision of the Family Court awarding Ms Keith spousal maintenance.1 The core issue on appeal was whether the Judge was correct to find the de facto relationship was one of short duration. I allowed the appeal, but remitted the matter to the Family Court for reconsideration.

[2] Mr Craig now seeks costs in respect of the appeal. Ms Keith opposes his costs application, arguing that no costs award should be made against her or alternatively that the costs award should be less than what Mr Craig claims.

Background

[3] Ms Keith and Mr Craig met in August 2009 and conceived a child together shortly afterwards. They became engaged in September 2009 and moved into a rented apartment together in April or May 2010. They separated in February 2013, and Ms Keith applied for spousal maintenance in March 2013. The core issue was whether or not the relationship was one of short duration (i.e. less than three years).

[4] Judge Burns found that it was not a relationship of short duration.2 He did not make an exact finding as to when a qualifying de facto relationship commenced, but he commented on each of the indicia in s 2D(2) of the Property (Relationships) Act 1976 (PRA) and further noted his view that Mr Craig misrepresented the evidence in his desire to get the relationship under three years. Judge Burns ordered that Mr Craig pay past and future spousal maintenance to Ms Keith. Judge Ellis subsequently ordered that the payment was to be made as a lump sum of
$398,770.55, but there was a stay on enforcement for six months.3

[5] On appeal I set aside that decision. I found that the character of the parties’

relationship prior to May 2010, when they began living in the apartment together,

1      Craig v Keith [2017] NZHC 1720.
2      Keith v Craig [2015] NZFC 8512.
3      Keith v Craig [2016] NZFC 10269.

was difficult to define. A sexual relationship and even the conception of children are not necessarily indicative of a mutual commitment to a shared life. Judge Burns’ assessment of the s 2D(2) indicia did not necessarily point against or in favour of a qualifying de facto relationship. Nor did my own analysis of those…

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.

Continue reading Craig v Keith

Details

AGLC: Craig v Keith [2017] NZHC 2664
Case: [2017] NZHC 2664
Decision Date: 31 October 2017

CaseChat Overview and Summary

In the case of Craig v Keith, the High Court considered a costs application by Mr Craig, who was successful on appeal against a spousal maintenance order made in the Family Court. The appeal was successful because the Family Court had found the de facto relationship to be of short duration, a finding the High Court did not uphold. The Court found that the relationship was not of short duration and remitted the matter to the Family Court for reconsideration. Ms Keith opposed Mr Craig's costs application, arguing that no costs award should be made against her or that the costs award should be less than what Mr Craig claimed. The Court considered the nature of the proceedings and the principle that the successful party is entitled to recover costs. It held that financial hardship was not sufficient grounds to reduce or refuse costs and that Ms Keith's arguments on appeal were lacking in merit. The Court allowed costs on a 2B basis with the exception of Item 55 which warranted a 2C categorisation. The Court also found that Mr Craig was not entitled to costs for the second and third case management conferences. The costs order made in the Family Court for the decision under appeal was set aside and costs in the Family Court were remitted to that Court for determination. Mr Craig was also entitled to disbursements totalling $12,720.37.

Orders