Dunsford v Shanly - [2012] NZHC 2375

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION PLEASE SEE THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-5053 [2012] NZHC 2375

IN THE MATTER OF the Property (Relationship) Act 1976 and the District Courts Act 1947

BETWEEN GAYLENE DUNSFORD Appellant

ANDEDWARD JOHN SHANLY First Respondent

ANDSTEPHEN THOMAS WOODFIELD Second Respondent

Hearing: On the papers

Counsel: K G Davenport for Appellant
B V McLean for First Respondent

Judgment: 21 September 2012

In accordance with r 11.5 I direct that the delivery time of this judgment is 9am on the 21st day of September 2012.

JUDGMENT OF MACKENZIE J (Costs)

[1] The appellant has applied for costs following delivery of my judgment on

23 February 2012 allowing the appellant’s appeal.

DUNSFORD v SHANLY HC AK CIV-2011-404-5053 [21 September 2012]

[2] My judgment did not address costs. Counsel for the appellant filed a memorandum dated 13 March 2012, seeking costs on a 2B scale totalling $3,196, plus disbursements of $1,691.80. Counsel for the first respondent, by letter, objected to the fixing of costs, submitting that I did not reserve costs in the judgment and there was no jurisdiction to award costs.

[3] I issued a Minute on 5 June 2012 setting a timetable for further submissions. Counsel for the appellant filed a memorandum dated 7 June 2012. Counsel for the first respondent sought an extension of time until Wednesday, 1 August 2012 for filing his submissions. He apparently did not advise counsel for the appellant of that request. He then filed submissions in respect of costs dated 7 August 2012. By letter dated 8 August 2012, counsel for the appellant objected to the late filing.

[4] I intend to deal with costs in the light of all the submissions that I have received.

[5] The first question is whether the Court has power at this stage to award costs, or whether this Court is functus officio.

[6] A similar question was addressed by Rodney Hansen J in B v B.[1] That case related to the question of whether the Family Court had power to award costs, where judgment had been delivered in that Court without addressing of costs. He said:[2]
[1] B v B HC Dunedin CIV-2011-412-000328, 26 September 2011.
[2] At [39]-[43] (citations omitted).

[39] In support of his submission that the Family Court was functus officio, Mr Andersen relied on Thomson v Thomson where the Family Court had made a consent order allowing the respondent mother to take custody of the child. The order did not refer to costs. The order was sealed. The respondent then applied to the Family Court for costs and was awarded costs. On appeal, the order was quashed. Grieg J held that because the judgment had been perfected without the question of costs being reserved, there was no power to reactivate the judgment or alter it by adding…

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 Dunsford v Shanly

Details

AGLC: Dunsford v Shanly [2012] NZHC 2375
Case: [2012] NZHC 2375
Decision Date: 21 September 2012

CaseChat Overview and Summary

In the case of Dunsford v Shanly, Gaylene Dunsford, the appellant, sought costs following a previous judgment that allowed her appeal. The initial judgment did not address the issue of costs. Dunsford's counsel applied for costs on a 2B scale, amounting to $3,196, plus disbursements of $1,691.80. The first respondent, Edward John Shanly, objected to the fixing of costs, arguing that the court did not reserve costs in the judgment and therefore had no jurisdiction to award them. The court examined the issue of whether it had the power to award costs after the original judgment was delivered without addressing the matter. The court found that it did have the jurisdiction to award costs, as the judgment had not been sealed and the principle of finality was not compromised. The court also considered that there was no valid reason to depart from the principle that costs should follow the event, and thus, the appellant, having been successful on appeal, should be awarded costs. The court ordered that the appellant should receive costs in the sum of $3,196 plus disbursements of $1,691.80, totalling $4,887.80.

Orders