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 a costs order.

[40]      [Thomson] is immediately distinguishable as the judgment in this case has not been sealed.  However, in my respectful view, the Family Court had (and has) jurisdiction to award costs whether or not the order has been sealed.  Two decisions of this Court on appeal from the Environment Court support that view.

[41]      In National Investment Trust v Christchurch City Council Young J was asked to consider whether an Environment Court Judge was unable to make  an  order  for  costs  following  a  decision  on  the  substantive  issue because he was functus officio.  It was held that the general power conferred on the Environment Court to make an order for costs did not operate to restrict its discretion to award costs after a decision had been delivered.  It was further held that if costs were not sought, due to a mistake or oversight of the Court, or if an application for costs was not made because counsel had not appreciated that their client sought costs, or if the Judge failed to reserve costs, the slip rules in rr 11 and 12 of the District Court Rules permitted any mistake or oversight to be remedied.

[42]      In Wilson v Selwyn District Council Fogarty J held that the sealing of an order in the Environment Court which made no order for costs and did not reserve costs, did not preclude an award of costs.  Fogarty J held that the Court was not functus officio.  He said:

Hearing an application for costs by either the respondent or the applicant when the main judgment is silent on costs does not amount to varying or altering a judgment already given and thus undermine the principle of the need for finality of litigation.

[43]     I  respectfully  agree  with  Fogarty  J’s  conclusion  and  with  the reasoning that preceded it.   The authorities he referred to, specifically Dymocks Franchise Systems (NSW) Pty Ltd v Todd (No 2) and Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd, make it clear that there is jurisdiction to make supplemental orders provided they do not offend the principle of finality.  It is not open to a party to seek to vary or alter a judgment but, in a proper case, further or consequential relief may be sought, including an order for costs.

[7]      I  respectfully  agree  with  Rodney  Hansen J’s  reasoning.    I  consider  that similar considerations apply to the present case.   The powers of this Court on an appeal from the District Court (including the Family Court) are set out in s 76(1) of the District Courts Act 1947 which provides:

76       Powers of High Court on appeal

(1)       Having heard an appeal under section 72, the High Court may—

(a)      make any decision or decisions it thinks should have been made:

(b)      direct  the  District  Court  in  which  the  decision  appealed against was made—

(i)       to rehear the proceedings concerned; or

(ii)      to consider or determine (whether for the first time or again) any matters the High Court directs; or

(iii)     to enter judgment for any party to the proceedings concerned the High Court directs:

(c)      make any further or other orders it thinks fit (including any orders as to costs).

[8]      That subsection deals separately with the powers of the Court in respect of the substantive decision of the District Court (in para (a)) and in respect of ancillary orders, including orders as to costs (in para (c)).   I find nothing in the wording of s 76(1) to support the proposition that, in determining an appeal against a decision of the District Court by making an order under s 76(1)(a), the Court becomes at that point functus officio so as to exclude the possibility of a later order under s 76(1)(c).

[9]      For these reasons, I consider that this Court has power to make an order as to costs.

[10]     Counsel for the first respondent opposes the making of an order for costs at this stage on the grounds that if the order had been made at the time, this may have affected the first respondent’s decision as to whether or not to apply for leave to appeal against the judgment.   I do not regard that as a factor which should weigh against the grant of costs at this stage.  Any appeal rights from this costs judgment will run from the date of this judgment.

[11]     I  consider  that  there  is  no  good  reason  for  departing  from  the  ordinary principle that costs should follow the event.  The appellant, having been successful on the appeal, should have costs in this Court.  I consider that the calculation of costs on a 2B basis is appropriate.   There will be an order for costs in favour of the appellant in the sum of $3,196 plus disbursements totalling $1,691.80, making a total of $4,887.80.

“A D MacKenzie J”

Solicitors:         Kate Davenport, Barrister, Auckland for Appellant

Barry McLean, Barrister, Auckland for First Respondent