GS v LM - [2021] NZHC 3569

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…

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 GS v LM

Details

AGLC: GS v LM [2021] NZHC 3569
Case: [2021] NZHC 3569
Decision Date: 20 December 2021

CaseChat Overview and Summary

The case of GS v LM involves a dispute between Mr. S and Ms. M, who were in a relationship from 2008 to 2018 and have one son together. Ms. M had obtained a final protection order against Mr. S, which Mr. S appealed. Mr. S's appeal was dismissed, and now the court must determine the issue of costs. Ms. M seeks costs on a combined 2B and 2C scale basis, or alternatively, 2B scale costs with a 50% uplift, totaling $28,321.50 or $23,481.75, respectively. Mr. S did not file a costs memorandum.

The court considered whether costs should be awarded on a combined 2B and 2C scale basis, which is appropriate for steps in a proceeding that required a comparatively large amount of time. However, the court found that this case did not have the hallmarks of a Band C case, and applying a higher band for some steps was an inappropriate mechanism to recognize that the proceeding required more resources than anticipated.

In the alternative, the court considered whether increased costs should be awarded. The court found that Mr. S contributed unnecessarily to the time and expense of the proceeding by taking or pursuing unnecessary steps or arguments that lacked merit, failing to comply with the Rules or a direction of the court, and failing to admit facts, evidence, documents, or accept a legal argument without reasonable justification. The court found that an award of increased costs was justified, and ordered Mr. S to pay to Ms. M costs on a 2B scale basis with a 50% uplift, in the total sum of $23,481.75.

The court's decision was based on the significant increase in costs due to the way in which Mr. S conducted the appeal. The Family Court Judge had made a series of factual findings which supported the conclusion that Mr. S's behaviour was psychologically abusive towards Ms. M. Mr. S appealed essentially every single one of those findings, and also argued on appeal that the Judge erred 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. Additionally, Mr. S raised several grounds of appeal based on natural justice, including judicial bias, that were clearly unfounded.

In conclusion, the court found that an award of increased costs was justified and ordered Mr. S to pay to Ms. M costs on a 2B scale basis with a 50% uplift, in the total sum of $23,481.75. This decision highlights the importance of conducting legal proceedings in a manner that is both efficient and respectful of the court's time and resources.

Orders