GS v LM
[2021] NZHC 3569
•20 December 2021
NOTE: PURSUANT TO S 182 OF THE FAMILY VIOLENCE ACT 2018, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,
PLEASE SEE https://www.justice.govt.nz/family/about/restriction-on-publishing- judgments/
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-2504
[2021] NZHC 3569
BETWEEN G S
Appellant
AND
L M
Respondent
Hearing: On the papers Counsel:
A J Bell and A A P Wooding for respondent Appellant in person
Judgment:
20 December 2021
JUDGMENT OF KATZ J
[Costs]
This judgment was delivered by me on 20 December 2021 at 4.00 pm Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Solicitors: McVeagh Fleming Lawyers, Auckland Copy to: G S (Appellant)
GS v LM [2021] NZHC 3569 [20 December 2021]
Introduction
[1] Mr S and Ms M were in a relationship from 2008 until 2018. They have one son.
[2] On 7 December 2020, a temporary protection order against Mr S was made final by Judge Maureen Southwick QC.1 Mr S appealed against Judge Southwick’s decision. On 24 September 2021, I dismissed that appeal.2 It is now necessary to determine the issue of costs.
[3] Ms M seeks costs, on a combined 2B and 2C scale basis, of $28,321.50. Alternatively, she seeks 2B scale costs with an uplift of 50 per cent, in the sum of
$23,481.75. Mr S did not file a costs memorandum.
Should costs be awarded on a combined 2B and 2C scale basis?
[4] The Court has a general discretion as to costs.3 The general rule, however, is that a party who fails with respect to a proceeding should pay costs to the party who succeeds.4
[5] An award of costs should reflect the complexity and significance of the proceeding.5 A reasonable time for a step in a proceeding is (typically) the time specified for it in sch 3 of the High Court Rules 2016 (“the Rules”).6 Band B is appropriate where a normal amount of time is considered reasonable.7 Band C is appropriate, however, if a comparatively large amount of time for the particular step is considered reasonable.8
[6] In Commissioner of Inland Revenue v Chesterfields Preschools Ltd, the Court of Appeal noted that “a blanket assessment for banding is not desirable, nor even
1 [LM] v [GS] [2020] NZFC 10445
2 S v M [2021] NZHC 2522.
3 High Court Rules 2016, r 14.1.
4 Rule 14.2(1)(a).
5 Rule 14.2(1)(b).
6 Rule 14.5(1)(a).
7 Rule 14.5(2)(a).
8 Rule 14.5(2)(b).
possible under the … Rules”.9 If a party claims that Band C represents a reasonable time for a particular step, that party must demonstrate why a normal time for that particular step would be insufficient.10
[7] Ms Bell seeks costs on a Band C basis for five steps in the proceeding, which she submits took a comparatively large amount of time:
(a)Step 53 – Commencement of response to appeal: Ms Bell submits that there were a large number of issues canvassed in the appeal. She notes that this included unfounded allegations of errors of fact on all the findings made by the Family Court Judge at [114](a)-(h) of the decision, in addition to multiple claims of errors of law.
(b)Step 10 – Preparation for first case management conference: Ms Bell submits that this step also took a comparatively large amount of time due to the number of issues canvassed in the appeal.
(c)Step 11 (No 1) – Filing memorandum for first case management conference: Ms Bell submits that Mr S made a late and unsuccessful application to waive security for costs, which had already been agreed and fixed at the first conference.
(d)Step 11 (No 2) – Filing memorandum for second case management conference: Ms Bell submits that this case management conference resulted from Mr S’s unsuccessful application for a stay (which the Court viewed as an application to vary the protection order) and required further memoranda and correspondence prior to the hearing.
(e)Step 56 – Preparation of written submissions: Ms Bell submits that the appeal canvassed numerous errors of law, allegations of bias, and matters relating to the standard firearms condition of protection orders. She submitted that these claims lacked merit and required counsel to
9 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2010] NZCA 400 at [161] citing
Paper Reclaim v Aotearoa International Ltd [2007] NZCA 544.
10 At [161].
file two sets of substantive written submissions prior to the hearing, and further written submissions regarding the firearms condition following the hearing. She notes that time was also required to review and object to documents that Mr S filed without leave.
[8] In Young v Tower Insurance Ltd, the plaintiffs sought costs on a combined 2B and 2C scale basis.11 Specifically, 2C scale costs were claimed for trial preparation, and completion of briefs and the common bundle for the 11 day trial hearing (with second counsel).12 Gendall J noted that the case was “one of those earthquake claim cases on which a differential time banding for trial preparation and related steps should be adopted.”13 There was a degree of complexity involved in the assessment of earthquake caused damage on a difficult site, and the defendant’s proposed repair strategy and repair and rebuild costings on the site.14 A comparatively large amount of time was required for those particular steps for the 11 day hearing, such that an award of 2C scale costs would not exceed a two-thirds reimbursement of the plaintiff’s actual legal costs (as is the aim of the Rules).15 Gendall J therefore concluded that:16
I repeat that the present case, occupying as it did at least 10 days of trial time and involving a range of reasonably complex issues is one which required, but only by a relatively fine margin, that trial preparation aspects reasonably needed a comparatively large amount of time. Thus I find that category 2C is appropriate but only for those trial preparation aspects.
[9] In FTG Securities Ltd v Bank of New Zealand, the Bank of New Zealand (“BNZ”) sought costs on a combined 2B and 2C scale basis after successfully defending the plaintiff’s application for an urgent interim injunction to restrain a mortgagee sale.17 Specifically, costs on a 2C scale basis were claimed for filing an
11 Young v Tower Insurance Ltd [2017] NZHC 482 at [6].
12 At [6] and [33].
13 At [40].
14 At [40].
15 At [40].
16 At [40].
17 FTG Securities Ltd v Bank of New Zealand [2017] NZHC 358 at [1] and [5].
opposition to the application and the preparation of written submissions.18 Gendall J considered that 2C scale costs were appropriate as:19
… this was not a case where an interlocutory application was made within an existing proceeding which was on foot. In this case, the interlocutory application at issue was filed concurrently with the statement of claim, and under particularly urgent circumstances. This would have necessitated a significant allocation of resources on the part of BNZ between the date of service and the hearing to fully understand the claim being made and the legal and evidential issues required to meet it.
[10] In Body Corporate 172108 v Manchester Securities Ltd, the plaintiff sought costs following a successful application under the Unit Titles Act 1972 to vary a scheme to repair a high-rise apartment building.20 The scheme was put in place by four judgments of Heath J, and there were four unresolved costs memoranda before the Court.21 Fogarty J considered that Band C was appropriate for the listing of the “some 3,960” documents, “simply because 2B at 2.5 days is insufficient”.22 The Judge further found that Band C was appropriate for the preparation of written submissions, authorities and the common bundle due to the “volume of material”.23
[11] With reference to these cases, it is my view that this case does not have the hallmarks of a Band C case. It did not involve an 11 day trial canvassing complex and technical expert evidence on earthquake damage, as in Young v Tower Insurance Ltd. Nor did it require an immediate and unexpected allocation of resources to respond to an urgent application like FTG Securities Ltd v Bank of New Zealand. Further, the present case did not involve the sheer magnitude of documents as that of Body Corporate 172108 v Manchester Securities Ltd. The factors that made this proceeding require more resources than anticipated is not because of the nature of the proceeding itself, but rather the way in which otherwise ordinary steps were conducted. Applying a higher band (Band C) for some steps is an inappropriate mechanism to recognise that fact.
18 At [5] and [13].
19 At [14].
20 Body Corporate 172108 v Manchester Securities Ltd [2017] NZHC 1252 at [2].
21 At [2] and [3].
22 At [55].
23 At [56].
Should increased costs be awarded?
[12] In the alternative, Ms M seeks an award of increased costs. Ms Bell submits that Mr S pursued arguments that lacked merit, using the appeal as a fishing expedition, and challenged virtually every finding made by the Family Court Judge. Ms Bell further submits that Mr S took unnecessary steps in his conduct of the proceeding, including by failing to comply with the Rules through filing and re-filing documents without leave.
[13] Ms Bell also seeks further approval for an additional 0.25 days as a time allocation for preparing the Case on Appeal.24 This, she submits, is to recognise the additional time that was required of counsel to confer with and support Mr S, as a self-represented litigant, to prepare these documents.
[14] The Court may order a party to pay increased costs if the party opposing costs has contributed unnecessarily to the time or expense of the proceeding or a step in it by, among other things:
(a)failing to comply with the Rules or a direction of the court;25
(b)taking or pursuing an unnecessary step or an argument that lacks merit;26 or
(c)failing, without reasonable justification, to admit facts, evidence, documents, or accept a legal argument.27
[15] I accept that the costs of the appeal were significantly increased due to the way in which Mr S conducted the appeal. The Family Court Judge made a series of factual findings which together supported the conclusion that Mr S’s behaviour was psychologically abusive towards Ms M. Mr S appealed essentially every single one of those findings. Only one finding was not upheld, because there was insufficient evidence from which to infer intent. Mr S also argued on appeal that the Judge erred
24 This is Step 55 of sch 3 to the High Court Rules 2016.
25 High Court Rules 2016, r 14.6(3)(b)(i).
26 Rule 14.6(3)(b)(ii).
27 Rule 14.6(3)(b)(iii).
in law in finding that a protection order was necessary and by failing to revoke the standard firearms condition of the protection order. Mr S had not, however, provided the Family Court with sufficient evidence to enable it to determine that issue. Nor did he seek leave to remedy that deficiency on appeal.
[16] In addition, Mr S raised several grounds of appeal based on natural justice, including judicial bias, that were clearly unfounded.
[17] The scattergun approach taken to the appeal, including the pursuit of numerous unmeritorious arguments, and challenging every factual finding of the Family Court Judge, clearly significantly increased the costs that had to be incurred by Ms M in opposing the appeal.
[18] I also accept Ms Bell’s submission that Mr S also took unnecessary procedural steps in the lead up to the appeal hearing that increased costs. For example, he agreed to security for costs at the first case management conference, but later sought to have them waived. Mr S’s pleadings and memoranda were amended and refiled multiple times throughout the proceedings, increasing the time taken by counsel to review the documents and identify changes. His pleadings and submissions were lengthy and repetitive, and often lacked clarity. Although courts will always grant a fair degree of latitude to self-represented persons in this respect, there are limits on that. Here, the manner in which the appeal was run clearly must have increased the time that had to be incurred by Ms M’s legal advisers well outside the bounds of what would normally be expected for an appeal of this nature. In this context I also agree that a modest allowance of 0.25 days for assisting in the preparation of the Case on Appeal is appropriate. Counsel for Ms M was required to assist Mr S to a considerably greater extent than if he had been legally represented.
[19] Mr S further added to the time and expense of the proceeding by failing to comply with the Rules and directions of the Court. Mr S delayed the proceeding by failing to comply with timetabling directions and seeking to introduce additional evidence shortly before the hearing (at which time he alleged that the transcripts provided by the Family Court had been altered). He further sought to file evidence
and submissions on multiple occasions without leave of the Court, which counsel for Ms M was required to review and respond to.
[20] I accept that all of these factors put Ms M to considerable additional expense. An award of increased costs is justified. The appropriate uplift on 2B scale costs is 50 per cent.
Result
[21] I order Mr S to pay to Ms M costs on a 2B scale basis with a 50 per cent uplift, in the total sum of $23,481.75.
Katz J
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