G D B v C D B

[2013] NZHC 2796

ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PARTIES AND THE CHILDREN.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV2010-483-315 [2013] NZHC 2796

BETWEEN  G D B Plaintiff

ANDC D B Defendant

Hearing:                   On Papers

Counsel:                  G Mason for Plaintiff

A Barker for Defendant

Judgment:                24 October 2013

COSTS JUDGMENT OF RONALD YOUNG J

[1]      In these proceedings Mr Barnes sued Ms Barnes pursuant to a relationship property agreement whereby Ms Barnes promised to pay (but did not) $145,000. Ms Barnes said in defence and by counterclaim that Mr Barnes’ unpaid child support and  school  fee  payments  more  than  met  her  obligation  to  pay  the  relationship property settlement and that she was due unpaid child support and school fees from Mr Barnes.

[2]      I concluded that the parties had agreed to end the child support payment and therefore there was no unpaid child support or unpaid school fees.  I concluded that Ms Barnes was, therefore, obliged to pay Mr Barnes the $145,000.

[3]      Mr Barnes now seeks costs on a 2B basis.  He is entitled to costs given he succeeded in his claim and successfully opposed the counterclaim.  Ms Barnes says, however, that these proceedings were within the jurisdiction of the District Court

and, therefore, the District Court costs scale should apply. There are other arguments

G D B v C D B [2013] NZHC 2796 [24 October 2013]

contained in the submissions of counsel which, for the moment, I do not need to deal with.

[4]      Rule 14.13 provides as follows:

14.13 Proceedings within jurisdiction of District Court

Costs ordered to be paid to a successful plaintiff must not exceed the costs and disbursements that the plaintiff would have recovered in the District Court if the proceeding could have been brought there, unless the court otherwise directs.

[5]      The parties cannot agree on whether or not r 14.13 applies to the facts of this case.   It is accepted that the $145,000 claimed by the plaintiff who initiated the proceedings was within the jurisdiction of the District Court.  There is some dispute as to whether or not the counterclaim claiming as it did $4,000 per month from

1 December 2009 for maintenance and in addition unspecified school fees would have exceeded the $200,000 jurisdictional limit.

[6]      What is clear, however, is that the claim and counterclaim together would have exceeded the jurisdictional limit.  The case also involved some complexity.  On the other hand there is some strength to the defendant’s argument that treating this as a straight forward 2B High Court case has elements of unfairness.

[7]      Costs and disbursements on a 2B basis assuming the matter was appropriately brought in the High Court from the beginning totalled $37,403.12 according to Ms Barnes.

[8]      Ms Barnes says that High Court costs properly calculated total $33,652 but based on the District Court scale they are $18,272.  There is dispute about the proper disbursements payable.

[9]      I think this is a case where it is appropriate to take a global approach.  As I have said there is some justification for the claim that this case was appropriately heard in the High Court and, therefore, that scale should apply.  On the other hand the plaintiff’s initial claim was well within the jurisdiction of the District Court.

However, as counsel noted, a summary judgment was sought but was not available in the District Court at the time when the proceedings were issued.

[10]     In the circumstances, therefore, I think an order of costs in favour of the plaintiff  on  both  the  claim  and  counterclaim  in  an  appropriate  middle  ground between the two sets of costs properly serves the interests of justice as far as both the plaintiff and defendant are concerned.

[11]     The plaintiff will have costs against the defendant in the sum of $25,000. The filing fee of the plaintiff’s claim should be reduced to the filing fee in the District   Court   but   the   other   disbursements,   including   the   hearing   fee, accommodation and service, are High Court fees.   The plaintiff should present an

order for sealing by the Registrar.

Ronald Young J

Solicitors:

G Mason, Barrister, Palmerston North
A Barker, Barrister, Auckland