FT v JML - [2012] NZHC 1388

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 2012-404-000200 [2012] NZHC 1388

BETWEEN FT Appellant

ANDJML Respondent

Hearing: 13 June 2012

Counsel: G S G Erskine for Appellant
A M Swan for Respondent

Judgment: 19 June 2012

JUDGMENT OF KEANE J

This judgment was delivered by on 19 June 2012 at 4pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar
Date:

Solicitors:
Carter & Partners, Auckland for Appellant
Walker Associates, Auckland for Respondent

FT V JML HC AK CIV 2012-404-000200 [19 June 2012]

[1] In a decision, dated 21 September 2010, in the Family Court, Manukau, Judge M L Rogers divided the final aspects of the relationship property of FT and JML. As a result of that decision, and her earlier decision, dated 31 July 2008, JML, whose assets these nominally were, became liable to pay to FT $1,145,225.50 on account of her half share.

[2] At the date of the second decision JML had already paid to FT, as a result of the aspect of the Judge's first decision that he had chosen not to appeal, $388,581.50. He has since paid to her the balance, and interest since the date of the second judgment. No issue now remains as to these two judgments, the second of which has never been appealed, except for the question of costs.

[3] Immediately the Judge gave her second decision FT applied for costs and, though JML did not respond, the Judge did not then and has not since, formally issued any decision in response. When asked in November 2011, she recalled that she had declined FT costs in a handwritten minute soon after FT applied. The minute cannot be found and the Judge later said that, a year having passed, she could not recall what her reasons were.

[4] FT appeals the decision the Judge recalls making, declining her costs, on the basis that it cannot stand in the absence of reasons. FT contends that she was the ultimately successful party and was entitled to costs, calculated according to the District Court costs rules, on the overriding principle that costs follow the event. The Judge had either to make an award in that principled and particular way, she contends, or explain why she had decided not to do so.

[5] JML contends that the Judge had a general discretion whether to award costs and if, as happened, she elected not to make any award, she did not need to explain why. It was only if she made an award that she had to ground it in the District Court costs rules. The reasons why she declined to make any award, he contends further, are to be found implicitly in her second judgment, where she gave her reasons for declining interest.

Evolution of case

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 FT v JML

Details

AGLC: FT v JML [2012] NZHC 1388
Case: [2012] NZHC 1388
Decision Date: 19 June 2012

CaseChat Overview and Summary

The case of FT v JML concerns the division of relationship property between FT and JML, following their separation. The primary dispute revolves around the costs incurred in the proceedings and whether FT is entitled to an award of these costs from JML. The Family Court initially divided the relationship property, leading to a financial liability for JML towards FT. FT subsequently applied for costs, but the Judge declined to award them without providing any reasons. FT appealed this decision on the grounds that the absence of reasons made the decision untenable. JML argued that the Judge had a general discretion to decline awarding costs without providing reasons.

The court had to determine whether the Judge's decision to decline FT's costs could stand without reasons and whether the decision to award costs should be made by the court or remitted to the Judge. The court found that the Judge's decision could not stand due to the lack of verifiable reasons. Given the principle that all questions under the Property (Relationships) Act 1976 should be resolved as simply and inexpensively as possible, and considering the Judge's inability to recall her reasons, the court decided to determine the costs itself.

The court concluded that FT was entitled to some costs but not the full amount she sought. While FT succeeded on the primary issue of the status of the Stone shares as relationship property, the court found that she did not achieve a clear victory on the value of those shares. Considering all factors, the court awarded FT $30,000 in costs and her expert's fee of $25,909.05, while the costs of the appeal would lie where they fall.

The final orders of the court were that FT would receive $30,000 in costs and her expert's fee of $25,909.05 from JML, with the costs of the appeal to lie where they fall.

Orders