GS v LM - [2022] NZHC 3569

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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: [2022] NZHC 3569
Decision Date: 20 December 2021

CaseChat Overview and Summary

GS v LM involved a dispute concerning a finalisation of a temporary protection order against GS, made by LM. The appeal against the finalisation of the protection order was dismissed. The court was required to determine the issue of costs. Specifically, the court needed to decide whether the costs should be awarded on a combined 2B and 2C scale basis or if an uplift on 2B scale costs should be granted. LM sought costs, on a combined 2B and 2C scale basis, of $28,321.50. Alternatively, she sought 2B scale costs with an uplift of 50 per cent, in the sum of $23,481.75. GS did not file a costs memorandum.

The court concluded that this case did not have the hallmarks of a Band C case, as it did not involve an 11 day trial, a significant allocation of resources to respond to an urgent application, or a sheer magnitude of documents. Instead, the factors that made this proceeding require more resources than anticipated were due to the way in which otherwise ordinary steps were conducted. Applying a higher band for some steps was deemed an inappropriate mechanism to recognise this fact.

In the alternative, the court found that increased costs were warranted, as GS contributed unnecessarily to the time and expense of the proceeding. The court found that GS's scattergun approach to the appeal, including the pursuit of numerous unmeritorious arguments, and challenging every factual finding of the Family Court Judge, significantly increased the costs incurred by LM in opposing the appeal. The court also found that GS took unnecessary procedural steps in the lead up to the appeal hearing that increased costs. The appropriate uplift on 2B scale costs was determined to be 50 per cent.

The court ordered GS to pay LM costs on a 2B scale basis with a 50 per cent uplift, in the total sum of $23,481.75.

Orders