Gosbee v Gosbee

[2020] NZHC 2755

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B,

11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA

TĀMAKI MAKAURAU ROHE

CIV-2019-404-001771

[2020] NZHC 2755

IN THE MATTER

of the Property (Relationships) Act 1976

BETWEEN

VIVIENNE HELEN GOSBEE

Appellant

AND

CARL HENRY GOSBEE

Respondent/Cross-Appellant

On the papers

Appearances:

S Mitchell for Appellant

SE McCabe and S Recordon Respondent/Cross-Appellant

Judgment:

20 October 2020

COSTS JUDGMENT OF WALKER J

This judgment was delivered by me on 20 October 2020 at 3.30 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

[1]                 In a judgment delivered on 14 May 2020, I dismissed the appeal of a decision of the Family Court declining Ms Gosbee’s claim for compensation under s 15 of the Property (Relationships) Act 1976 (the Act).1

[2]                 I indicated my provisional view that costs ought to lie where they fell but invited memoranda if the parties disagreed.

[3]                 By memorandum dated 25 August 2020 the respondent, who ultimately succeeded in resisting the appeal, applies for costs on a 2B or 2C basis. The delay in doing so has been satisfactorily explained. The appellant opposes any costs award.

[4]I put aside my provisional view and now revisit the question of costs afresh.

[5]There is no indication that the appellant is legally aided.

[6]                 As Ms McCabe submits, the current approach in relationship property cases is to deal with questions of costs in the same way as ordinary civil proceedings.2 This marks a departure from the previous approach in which parties would bear their own costs because proceedings under the Act were seen as a “mutual approach to the Court for its assistance in dividing property”.3

[7]                 Consequently, although costs are at the discretion of the Court, the principles set out in r 14.2 of the High Court Rules 2016 guide the exercise of the Court’s discretion. As a general principle, an unsuccessful party should pay the costs incurred by the successful party in accordance with the principles set out.4

[8]                 Mr Mitchell submits that my judgment supports the appellant’s position that the Family Court decision was wrong in law and addresses novel issues in relation to issues of the discretion in s 15 of the Act. He further suggests that to award costs against the appellant, who is receiving a relatively modest relationship property award, while earning very little, would itself be onerous in all the circumstances.

1      Gosbee v Gosbee [2020] NZHC 1001.

2      Campbell v Goldie [2019] NZFLR 125; Thomas v Owen [2016] NZCA 178.

3      K Swadling Fisher on Matrimonial and Relationship Property (NZ) (online ed, June 2020) at 19.41.

4      High Court Rules 2016, r 14.2(1)(a).

[9]                 Mr Gosbee was ultimately successful. I did not make an award of compensation under s 15 nor remit the case to the Family Court. However, the reasons for that outcome departed from the reasoning of the Family Court. There were significant issues of principle and approach at stake, and in one important respect, Ms Gosbee’s arguments were successful. More importantly, the arguments were meritorious in terms of the application of the working assumption test in the Supreme Court judgment in Scott v Williams.5

[10]             Ms McCabe submitted that the manner in which Ms Gosbee conducted the proceedings and her position as regards settlement provides further support for a costs award against her. She submits that the appellant has caused Mr Gosbee to incur costs out of all proportion to both the issues in dispute and the overall relationship property pool. The submission is that the background context  informs  the  costs  position. Ms McCabe does not suggest that these matters are directly relevant on the question of costs for the appeal. In my assessment, that context is only potentially relevant to the determination of costs by the Family Court, which I understand is yet to be made. I put those issues to one side.

[11]             I do not regard these proceedings as anything other than 2B proceedings notwithstanding the importance of the issues.

[12]             Taking these points together, and considering the matters set out in r.14.7, I make an order for 2B costs in favour of the respondent, less 25%. Ms McCabe has helpfully provided a schedule of steps and the time allocation in accordance with the Rules. Mr Mitchell has not challenged any step. I therefore make an order for costs against the appellant in the sum of $13,085.25.

[13]Order accordingly.

………………………………………….

Walker J

5      Scott v Williams [2017] NZSC 185, [2018] 1 NZLR 507.