Hagley v Hagley

[2024] NZHC 31

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THE NAMES IN THIS JUDGMENT HAVE BEEN ANONYMISED

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-264

[2024] NZHC 31

BETWEEN

MRS HAGLEY

Appellant

AND

MR HAGLEY

Respondent

Hearing:	On the papers
Appearances:	S H Marsden for Appellant J Moss for Respondent
Judgment:	30 January 2024

JUDGMENT OF EATON J

(costs)

This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

HAGLEY v HAGLEY [2024] NZHC 31 [29 January 2024]

Introduction

[1]                 By judgment dated 25 July 2023 I allowed the appellant’s appeal against the decision of a Family Court Judge to allow an application to dismiss a protection order. Further, I upheld the appellant’s argument that the Family Court did not have jurisdiction to appoint a lawyer for the child on the application to discharge the protection order at issue.

[2]                 Following a period post-hearing of the appeal when the respondent was unrepresented, new counsel have been engaged and memoranda filed in relation to the outstanding issue of costs.

[3]                 It is agreed the appellant is entitled to costs on a 2B basis. No uplift or increase to scale costs is sought. There are just two events with which the respondent takes issue. I deal with each of those.

33A - preparation of chronology

[4]                 Ms Marsden for the appellant seeks costs of $2,390.00 for the preparation of a chronology. Mr Moss for the respondent submits that a chronology ought to have been prepared for the substantive hearing rather than the appeal. He observes that no direction was made by this Court requiring the appellant to prepare a chronology. Consequently, he does not accept it is appropriate for costs to be awarded for this step in the proceeding.

[5]                 Given the somewhat protracted nature of this litigation and the number of events relative to determination of the issues on appeal, it was helpful to the Court to have a chronology. But I agree it is unusual that a chronology might be first prepared for an appeal, and particularly so, when the judgment under appeal traverses the relevant historical events. In the circumstances I fix the level of costs in relation to chronology at $1,000.00.

23 – memorandum to respond to submissions of counsel appointed to assist the Court

[6]                 Ms Marsden seeks costs of $1,434.00 in relation to her submissions in reply to those of Mr van Bohemen who was appointed by the Court to address the question of jurisdiction to appoint a lawyer for the child on an application to discharge a protection order. As I observed in my judgment, counsel then acting for the respondent advanced submissions that aligned with those advanced by Mr van Bohemen.

[7]                 Mr Moss submits that on appeal the respondent took no position on this issue and effectively abided the decision of the Court. Consequently, he submits it would not be fair to visit costs on the respondent in relation to an issue in respect of which he neither raised nor took a position.

[8]                 I accept the respondent did not raise this issue on appeal. However, counsel then acting did positively advance a submission supporting the argument advanced by Mr van Bohemen that the Family Court Judge had jurisdiction to make the appointment. In the circumstances, I am of the view that the preparation of a memorandum to respond to the submissions filed by counsel assisting is appropriate albeit at a reduced level. I fix the costs in relation item 23 at $750.

Order

[9]The appellant is entitled to costs on a 2B basis in the total sum of $17,524.00

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

Eaton J

Counsel:

S Marsden, Barrister, Christchurch J Moss, Barrister, Christchurch

Copy to:

Saunders Robinson Brown, Christchurch Canterbury Legal, Christchurch