Grant v Everett

[2022] NZHC 3429

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2021-442-000015

[2022] NZHC 3429

BETWEEN

SAMANTHA JANE GRANT

Appellant

AND

JOHN EVERETT

Respondent

Hearing:

On the papers

Appearances:

Appellant in person

M A Ironside for Respondent

Judgment:

14 December 2022

JUDGMENT OF GRICE J

(Costs)

[1]                 Following my judgment dated 25 November 2022 dismissing the appellant’s application for special leave to appeal a relationship property judgment and the appeal from a civil judgment, the respondent has applied for costs by memorandum dated 13 December 2022. Ms Grant has responded seeking that costs lie where they fall.

[2]                 The respondent applies for costs on the basis that he was the successful party in relation to the appeal and to an application for leave to appeal both brought by   Ms Grant. He submits that costs should follow the event. The costs sought are according to the scale in the High Court Rules based on a category 2, band B calculation.

[3]                 The respondent does not claim costs for the period he was self represented (until 7 October 2021), does not seek costs incurred in relation to issues of capacity

GRANT v EVERETT [2022] NZHC 3429 [14 December 2022]

that were dealt with in the course of the proceedings and also specifically discounts the scale costs calculation reducing the time for the preparation of written submissions allowed as item 56, in relation to the appeal, from 3 days to 1.5 days.

[4]                 The costs claimed on the basis of the scale costs calculated on a category 2/band B basis amount to $17,923. The respondent in his memorandum indicates that he actually incurred costs and disbursements less than that, and so limits his claim to the amount of $11,592.60.

[5]                 Ms Grant opposes the application for costs. She does so on the grounds that she only earned little in the tax year 2020/21 and has had to live on a benefit. She had to use funds from the house settlement, which was part of the relationship property payment she received following  the  relationship  property  judgment  for  which  Ms Grant was seeking leave to appeal. Ms Grant also brings up a number of issues relevant to relationship property matters. Ms Grant refers to the fact she has had to purchase a motor vehicle, sell her private property and repay the mortgage. She says she has only part of the funds she received from the relationship property payment to her left, as she has had to pay ongoing expenses including legal fees. Ms Grant notes she was not represented by a lawyer in these proceedings and the court had appointed a lawyer but that was in relation to assisting in connection with a matter that arose in the course of the hearing.

[6]                 First, I note that the respondent does not allege that Ms Grant did have a lawyer representing her. Ms Grant apprehends that that was his submission. However he says that he did not have a lawyer representing him for part of these proceedings and therefore does not claim costs for that period.

[7]                 Secondly, the matters concerning the decision and the relationship property proceeding are not relevant to the issue of costs. Leave to appeal that decision was dismissed.

[8]                 Thirdly the costs do not include the costs of any lawyer appointed to assist the court in relation to the issues that arose at the hearing.

[9]                 The usual rule is that costs follow the event although the judge retains a discretion as to costs. The award of costs should reflect the complexity and significance of the proceeding and should be assessed by applying the appropriate daily recovery rate to the time considered reasonable for each step reasonably required in the proceeding or interlocutory application. As far as possible the determination of costs should be predictable and expeditious.1 Costs should be limited to those actually incurred.

[10]              A matter raised by Ms Grant that is relevant to her opposition to costs is her claim that she is unable to afford to pay costs. Ms Grant has sworn an affidavit in support of those submissions. That affidavit insofar as is relevant states that she is in receipt of a benefit which does not meet her living costs. She had lost her job due to being sent to prison and it is only since May 2022 that she has been able to gain employment on a part-time basis. Ms Grant says she has been left in financial ruin due to the relationship property settlement.

[11]              There is nothing in Ms Grant’s conduct of the proceeding that would support any reduction in the level of costs awarded. The manner in which she conducted appeal and the application for leave was well-intentioned but did not adhere to the High Court rules. It necessitated a number of teleconferences an attempt to bring some focus to the issues involved and to ensure the documents relevant to the appeal and leave application were before the court and able to be readily navigated.

[12]              The respondent has not claimed costs for those teleconferences. He was not legally represented at that time. It was the manner in which Ms Grant was conducting the litigation that required the respondent to obtain legal assistance in order to assist to bring some order to the proceeding and to prepare the documents in an indexed form so the hearing could proceed in an efficient manner. Without that intervention by the respondent’s lawyer the hearing would likely have taken longer.

[13]              Financial hardship is not an answer to a claim for costs. While Ms Grant has indicated that her income has suffered so she has had to have recourse to her capital, nevertheless she retains an amount of capital and is now in employment. Ms Grant

was offered the opportunity to seek the assistance of a lawyer and to apply for legal aid. It may be that she would not have been eligible for legal aid given her financial circumstances, but she refused on a number of occasions to seek legal assistance.  Ms Grant was entitled to represent herself. However, despite having had some experience in conducting litigation the manner in which she undertook this litigation does not give any basis for reducing the award of costs.

[14]              The application for costs sought is on a category 2, band B basis. This is appropriate for proceedings of average complexity requiring counsel of skill and experience considered average in the High Court.2 The time allocation claimed on a two B basis allows for a normal amount of time is considered reasonable to be expended for each relevant step. I am satisfied the appropriate category is 2 and band

B. In addition, the manner in which Ms Grant ran the litigation made it more difficult and time consuming than usual for the respondent.

[15]              Ms Grant does not take any issue with the detail of the steps and calculation of costs in the respondents claim. They appear reasonable in the circumstances.

[16]              The amount of the costs claimed as less than that which would be allowed under category 2B. The actual costs and disbursements incurred only have been claimed. That is appropriate.

[17]              I am satisfied that costs should be awarded in favour of the respondent in the amount sought. An award of costs and disbursements is made against the appellant in favour of the respondent for the sum of $11,592.60.

Grice J