H v E

[2012] NZHC 2194

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980.  FOR FURTHER INFORMATION PLEASE SEE THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2011-470-79 [2012] NZHC 2194

UNDER  the Property (Relationships) Act 1976

IN THE MATTER OF     an appeal against the decision in the Waihi

Family Court

BETWEEN  H Applicant

ANDE Respondent

Hearing:         On the Papers

Counsel:         D Hollings QC and E Eggleston for Appellant

CR Pidgeon QC and C Fisher for Respondent

Judgment:      23 August 2012

COSTS JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 23 August 2012 at 10.00 am

Pursuant to Rule 11.5 High Court Rules

Solicitors:

Registrar/Deputy Registrar

E Eggleston, Holland Becket, Tauranga:  [e-mail] C Bormans/C Fisher, Fortune Manning Law Partnership, Auckland: [e-mail]

Copy:

D Hollings QC, Auckland:  [e-mail]

CR Pidgeon QC, Auckland:  [e-mail]

H V E HC TAU CIV-2011-470-79 [23 August 2012]

[1]      Ms H succeeded in her appeal against a relationship property decision of the Family Court, but on a ground not advanced before that Court.[1]   She was given leave to adduce fresh evidence and claims costs for that interlocutory proceeding, and for second counsel at the hearing on 4 October 2011.   Ms H says costs incurred after

1 June 2011  should  be uplifted  by 50 percent  because  the  respondent  rejected  a Calderbank offer made on that date, the amount of which was exceeded by the judgment sum.

[1] H v E [2012] NZHC 1372.

[2]      Against  actual  costs  claimed  of  $81,565.96,  Ms H  seeks  an  award  of

$37,081.22.   Mr E opposes any award of costs and, in the alternative, opposes an order for costs on the application to adduce evidence and the 50 percent uplift.

[3]      Looking  at  the  itemised  claim  made  by  Ms H,  I  disallow  costs  for  the appearance of second counsel at the hearing on 4 October 2011.  The matter was not unduly complicated and, while I do not doubt that Mr Eggleston would have been of assistance to Mrs Hollings QC, he did not take an active role in the hearing.  I also disallow Ms H’s costs on the interlocutory application to file fresh evidence; the application was made because a point available to Ms H had not been taken before the Family Court.  Although Ms H succeeded on the opposed application for fresh evidence, the Court granted her an indulgence and, in any event, the point on which she succeeded could have been made without it.

[4]      I am required to determine, therefore, whether the amount of the resulting schedule  costs  should  be  exceeded  on  account  of  Mr E  having  failed,  without reasonable justification, to accept an offer of settlement made four months before the hearing.[2]

[2] High Court Rules, r 14.6(3)(b)(v).

[5]      I note that the Calderbank offer was made on 1 June 2011 and repeated on

29 September 2011.   It was not time-limited, and the respondent had over three months to consider the issue after Ellis J allowed the appellant to adduce fresh evidence.  The appellant’s settlement offer was significantly lower than the amount

claimed and awarded and the respondent’s counter-offer fell well short of the mark.

[6]      It is appropriate to reinforce the merits of making and accepting realistic settlement offers as r 14.6(3)(b)(v) recognises.  On that basis, I consider the appellant is entitled to an uplift of 50% of the scheduled costs allowed.

[7]      The scheduled costs allowed are as follows:

Commencement of appeal  1,990.00

Preparation for first case management conference                  796.00

Filing memoranda for case conferences  1,592.00

Appearances at two case management conferences              1,194.00

Preparation of written submissions  5,970.00

Appearance of counsel at hearing  1,990.00

50% uplift  6,766.00

Total  $20,298.00

[8]      Ms H shall also be allowed filing fees of $1,431.11.   Fax and telephone charges of a surprising $2,363.63 are sought.   They are unsubstantiated and are therefore declined. I also decline travel expenses for second counsel whose appearance I have also disallowed.

[9]      The total contribution to be paid by Mr E to Ms H, therefore, is $20,298 plus filing fees of $1,431.11.

..............................................

Toogood J