Donaldson v Perera - [2023] NZHC 2415

ANONYMISED VERSION

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2023-412-17

[2023] NZHC 2415

BETWEEN
ALAN DONALDSON

Appellant

AND

ANNE PERERA

Respondent

Hearing: 22 August 2023

Appearances:

Appellant in person

P J Dickinson for Respondent

Judgment:

31 August 2023

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 31 August 2023 at 11.30 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

DONALDSON v PERERA [2023] NZHC 2415 [31 August 2023]

[1] In late 2021, the respondent, Ms Perera, made an application to the Family Court for parenting orders. Her former partner, Mr Donaldson, opposed the orders but then disengaged from the proceedings. The orders sought by Ms Perera were made with some amendments from the Family Court Judge.1 She then applied for costs, seeking a little over $4,000. On 30 January 2023, Judge Flatley ordered Mr Donaldson to pay costs in the sum of $2,500.2

[2] Mr Donaldson appeals that decision on the following grounds. The first is that Mr Donaldson made a complaint about lawyer for the child having a conflict of interest. He says the proceedings should have been put on hold until the complaint had been dealt with. Second, he says his actions by disengaging from the proceedings part way through did not cause Ms Perera to incur extra expense. Finally, he says Ms Perera should meet her legal costs as it was she who wanted the parenting orders instead of relying on the existing arrangements.

[3] At issue is whether any of these matters justify the costs order being set aside on appeal.

Background

[4] The parties were in a relationship from late 2007, and their child was born in 2011. They separated in November 2015, but the separation was acrimonious. There have been ongoing disputes over care and contact arrangements with their child. In October 2021, Ms Perera applied for parenting orders saying that it was in their child’s interests for there to be “a settled care arrangement recorded in a Parenting Order”. Her application included a draft of proposed parenting orders sought.

[5] Mr Donaldson was initially legally represented. He disagreed with the parenting orders proposed by Ms Perera and made alternative suggestions for the terms of the parenting order.

1 Perera v Donaldson [2022] NZFC 7615.
2 Perera v Donaldson [2023] NZFC 861.

[6] Lawyer for the child, Ms Bridget Byers, was appointed in November 2021. She then met with each parent and with the child and filed a report on 20 January 2022. On 3 February 2022, the matter was set down for a judicial settlement conference.

[7] On 31 May 2022, shortly before the judicial settlement conference, Mr Donaldson’s lawyer, Ms Val Farrow, applied for an order declaring she was no longer solicitor acting for Mr Donaldson. In her affidavit, she advised as follows:

5.Mr Donaldson instructs that he does not inten[d] to appear at that conference, nor does he wish to pursue his defence…

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 Donaldson v Perera

Details

AGLC: Donaldson v Perera [2023] NZHC 2415
Case: [2023] NZHC 2415
Decision Date: 31 August 2023

CaseChat Overview and Summary

The High Court of New Zealand, Dunedin Registry, considered an appeal by Alan Donaldson against a Family Court order that he pay costs of $2,500 to Anne Perera. The underlying dispute involved parenting orders sought by Ms Perera in relation to their child. Mr Donaldson had opposed the parenting orders but later disengaged from the proceedings. Following the Family Court's grant of the parenting orders, Ms Perera applied for costs, which were assessed and awarded by Judge Flatley. Mr Donaldson's appeal hinged on three main contentions: his disengagement was justified by an alleged conflict of interest by the lawyer for the child, Bridget Byers; his disengagement did not cause additional expenses; and Ms Perera, as the applicant for the parenting orders, should bear the costs. The court had to determine whether these arguments justified setting aside the costs order on appeal.

The High Court found that Mr Donaldson's disengagement from the proceedings was not justified by the alleged conflict of interest by Ms Byers. The court determined that Mr Donaldson did not raise the conflict of interest until after he had disengaged from the proceedings and thus it could not be a relevant consideration. Furthermore, the court held that the alleged conflict of interest did not explain Mr Donaldson's decisions to oppose the parenting orders and to disengage from the proceedings. The second ground of appeal, that his disengagement did not cause additional expenses, was also dismissed. The court reasoned that Mr Donaldson's opposition to the application and his subsequent withdrawal forced the proceedings onto a standard track, resulting in additional costs for Ms Perera. Finally, the court found that the principle of costs focusing on the conduct of the parties during the proceedings, rather than on which party initiated them, supported the Family Court's decision to award costs to Ms Perera.

The High Court dismissed the appeal and ordered that Mr Donaldson pay costs of $795 to Ms Perera. This amount represented the security for costs Mr Donaldson had paid. The court noted that while it was mindful of the child's interests and the potential burden on Mr Donaldson, it was also necessary to address Ms Perera's costs for defending the appeal, especially given Mr Donaldson's cavalier approach to the proceedings.

Orders