FH v LH
[2013] NZHC 1495
•20 June 2013
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CIV-2012-419-1652 [2013] NZHC 1495
BETWEEN F H Appellant
ANDL H Respondent
Hearing: On the papers
Counsel: M J McCartney QC for the Appellant
R D Wallis for the Respondent
Judgment: 20 June 2013
COSTS JUDGMENT OF PRIESTLEY J
This judgment was delivered by me on Thursday 20 June 2013 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date:………………………….
Solicitors/Counsel:
M J McCartney QC, Barrister, Auckland.
R D Wallis, Barrister, Auckland.
P H Fisher, Clancy Fisher Oxner & Bryant, Tokoroa.
F H v L H [2013] NZHC 1495 [20 June 2013]
[1] On 10 May 2013 I issued a reserved judgment which allowed the appellant’s appeal from the refusal of the Family Court in Hamilton to make an interim spousal maintenance order. I ordered interim spousal maintenance totalling $13,000, costs in favour of the appellant on the 2B scale.
[2] The appellant’s counsel, using the relevant items and time allowances, calculates costs (7.3 days @ $1,990) of $14,527 (exclusive of disbursements). Counsel further seeks costs in the Family Court.
[3] Counsel for the respondent accepts a 2B scale liability for costs. He submits, however, the amount claimed for a case management conference is unjustified in the circumstances and that a “substantial portion” of counsel for the appellant’s submissions in the High Court were based on issues which were not determinative or which I rejected. Counsel further points out that, although successful in the Family Court, the respondent did not seek costs.
[4] It is now well settled that the costs regime imposed by the High Court Rules is designed to achieve elements of certainty and consistency. Although r 14.1 stipulates that all costs matters are discretionary, the relevant authorities make it clear that there is a strong implication the Court will apply the costs regime in the absence of some reason to the contrary. Generally, any departure must be considered and particularised.
[5] The discretion, in this particular case, must be exercised in the knowledge that the full rigour of the 2B scale results in a figure in excess of the fruits of the appeal. This factor influences my discretion to a degree.
[6] I consider that the interests of justice require a departure from the 2B time allocations in two areas. The first relates to the case management conference (items
10, 11, and 13).1 1.1 days is claimed. As it happens I presided over the case
management conference which was by telephone. Counsel for the appellant was at the time driving to a private function and had to leave the conference (once she had
1 While Ms McCartney QC’s memorandum includes item 12, that relates to costs for attendance at a callover hearing. The correct item is item 13 which relates to attendance at a case management conference.
entered a car park). There was no discourtesy involved and I accept the function was of importance to counsel. Total attendance time would have been six minutes. The “appearance” of 0.3 days and also the amount claimed for the filing of the appellant’s memorandum (item 11) and for preparation (item 10) in my view need modification. The reduction involved should be from 1.1 days to 0.6 days.
[7] The second area where some modification is required is in the three days allowed for preparation of written submissions (item 56). Counsel’s submissions were lengthy, and without in any way criticising counsel involved, could certainly have been somewhat tighter. I consider a reduction by one day to two days for that item meets the situation.
[8] The total reduction (1.5 days) reduces claimed 2B costs to 5.8 days which, at the 2B rate, reduces costs to $11,542. The appellant’s claimed disbursements are not opposed, are all reasonable, and are approved.
[9] On the issue of costs in the Family Court, given that no costs were claimed, ordered, or paid, my direction is that costs in the Family Court are to lie where they fall.
.......................................…
Priestley J
0
0
1