Fernandes v Fernandes

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2014-485-11449 [2015] NZHC 3048

BETWEEN
MILTON RAYMOND FERNANDES

Appellant

AND

ALYLUZ PALACIO FERNANDES Respondent

On thepapers:

Counsel:

K Lakshman for Appellant
T W Davis for Respondent

Judgment:

3 December 2015

JUDGMENT OF WILLIAMS (COSTS)

[1] The respondent seeks costs. The appellant submits there is no jurisdiction to make the award, this Court being functus officio.

[2] Despite Fogarty J’s decision in Wilson v Selwyn District Council1, I am of the view that once the judgment is sealed this Court is functus officio and can make no further orders with respect to the proceeding. I did not reserve costs, nor was I asked to. Judgment was sealed on 18 June 2015. The authorities cited by Mr Lakshman2 correctly state the law in this respect.

[3] Even if that is wrong, I would have let costs lie where they fall as, I understand it, they had in the Family Court. Although the judgment reads as a comprehensive loss for the appellant, a number of the points raised were clearly arguable and the law in key areas in the appeal had not previously been dealt with in
the High Court.

1 Wilson v Selwyn District Council (2004) 17 PRNZ 461 (HC).
2 Thomson v Thomson (1992) 6 PRNZ 591 (HC) and Deverick v Hedley HC Auckland AP122- SW99, 23 June 2000.

FERNANDES v FERNANDES [2015] NZHC 3048 [3 December 2015]

[4] The application for costs must be dismissed accordingly.

Williams J

Solicitors:
K Lakshman, Barrister, Johnsonville
Tania Davis Law, Porirua

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Fernandes v Fernandes was heard in the Wellington Registry. The case involved Milton Raymond Fernandes, the appellant, and Alyluzh Palacio Fernandes, the respondent. The dispute was related to costs sought by the respondent, with the appellant arguing that the Court lacked jurisdiction to award costs once the judgment was sealed. This Court's jurisdiction was determined to be functus officio, meaning it could not make further orders after the judgment was sealed.

The legal issue before the Court was whether it had the jurisdiction to award costs after the judgment had been sealed. The Court referred to previous cases such as Wilson v Selwyn District Council and Thomson v Thomson to support its position that once the judgment is sealed, the Court is functus officio and cannot make further orders. Despite this, the Court acknowledged that some of the points raised by the appellant were arguable and that the law in key areas of the appeal had not previously been dealt with in the High Court.

The Court concluded that once the judgment was sealed on 18 June 2015, it was functus officio and could not award costs. The application for costs was dismissed accordingly. The Court also noted that even if it had jurisdiction to award costs, it would have let costs lie where they fell, as they had in the Family Court, given the arguable nature of some of the points raised by the appellant.

No further orders were made by the Court in relation to the costs application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

On thepapers:
Counsel:	K Lakshman for Appellant T W Davis for Respondent
Judgment:	3 December 2015