Fisher v Fisher

[2015] NZHC 3264

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-000574 [2015] NZHC 3264

BETWEEN

RICHARD IAN FISHER

Appellant

AND

RAEWYN DAWN FISHER Respondent

Hearing:	16 December 2015 (via telephone conference)
Appearances:	R C Knight for the Appellant V Crawshaw for the Respondent
Judgment:	17 December 2015

JUDGMENT OF NATION J

[1]      The respondent seeks costs further to my judgment of 2 November 2015.

[2]      The appellant appealed against an order made in the Family Court requiring both parties to file and serve a full list of documents.   It was apparent from the documents I read prior to the hearing of the appeal that his main objection was that orders requiring him to make discovery were unnecessary because he had already offered to make full discovery on an informal basis.  The Family Court Judge, with justification, obviously thought formal discovery with verifying affidavits was required from both parties given the level of distrust and the basis on which the appellant was seeking to set aside a s 21 agreement.

[3]      The appeal in relation to discovery was resolved on the day of the hearing with the parties agreeing there should be tailored discovery.  It was anticipated that agreement would be reached as to the scope of that discovery and a memorandum

filed with the Court accordingly.  As it turns out, the parties have not been able to

FISHER v FISHER [2015] NZHC 3264 [17 December 2015]

reach  agreement and  further attendances have been required of their  counsel in relation to this.

[4]      I remain of the view that the parties had equal success on the appeal re discovery.

[5]      The appeal hearing proceeded over a day in relation to the appellant’s appeal against the decision of the Family Court refusing to transfer the proceedings to the High Court.  On that part of the appeal, the respondent was successful.

[6]      It is submitted for the respondent that the appeal over the transfer refusal was without merit and bound to fail.   The respondent seeks indemnity costs.   For the appellant, it was submitted that costs should lie where they fell and, if the Court did not accept this, there should be no uplift.

[7]      Although  I consider the  prospects  for success  for the appellant  over the transfer refusal were always low, he had a right to appeal the Family Court decision. The position he was seeking to advance was arguable.  Some of, but probably not, the majority of work required of counsel in preparation for the appeal related to the appeal over discovery on which the appellant had some success.

[8]      I do not consider indemnity costs are appropriate.  The respondent is entitled to costs on the appeal on a 2B basis.

[9]      The respondent has also sought costs for the appearance of junior counsel on the hearing of the appeal.  The appellant says there should be no provision for junior counsel.

[10]     These proceedings have become evidentially and legally complex and thus expensive for both parties.  That seems likely to continue.  Given that context, it was appropriate for junior counsel to be fully involved in the proceedings and assisting senior counsel.  Mr Knight had junior counsel with him on the hearing of the appeal.

[11]     The respondent is entitled to costs for junior counsel.

[12]     In accordance with the schedule attached to the memorandum of counsel for the respondent dated 19 November 2015, the respondent is entitled to costs on the appeal of $12,711 together with disbursements as approved by the registrar.

Solicitors:

Stace Hammond, Auckland

R C Knight, Barrister, Auckland

Simpson Grierson, Auckland

V Crawshaw, Barrister, Auckland.