Henry v Henry

[2022] NZHC 3305

NOTE: PURSUANT TO S 169 OF THE FAMILY PROCEEDINGS ACT 1980, AND TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976 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-2022-404-1153

[2022] NZHC 3305

UNDER

The Property (Relationships) Act 1976

AND UNDER

The Family Proceedings Act 1980

IN THE MATTER OF

An appeal from the Family Court of New Zealand held at North Shore

BETWEEN

COLIN HENRY

Appellant

AND

LORRAINE ALTHEA HENRY

Respondent

Hearing:

On the papers at Auckland

Appearances:

The Appellant in person

R J Macdonald for the Respondent

Judgment:

9 December 2022

JUDGMENT (No. 3) OF POWELL J

[Costs]

This judgment was delivered by me on 2022 at am/pm.

Pursuant to Rule 11.5 of the High Court Rules.

Solicitors/Counsel:

MBC Law Ltd, Auckland Copy:

C Henry, Auckland

…………………..

Registrar/Deputy Registrar

COLIN HENRY v LORRAINE ALTHEA HENRY [2022] NZHC 3305 [9 December 2022]

[1]                 On 11 October 2022 I dismissed Mr Henry’s appeal against the decision declining to strike-out Ms Henry’s proceedings in the Family Court.1

[2]                 At the end of my judgment, I determined that Ms Henry was entitled to costs and set out a timeframe for determining that issue.2

[3]                 Ms Henry, through Mr Macdonald, has now sought costs on a 2B basis in the sum of $13,384 together with disbursements of $34.60.

[4]                 In response, Mr Henry opposes any award of costs against him and, in the alternative, also challenges Ms Henry’s calculation of 2B costs to a limited extent. In particular, Mr Henry noted the discretionary approach to costs in the Family Court before acknowledging that the present proceedings were an appeal of a Family Court decision in the High Court. At that point Mr Henry appears to continue to take issue with the substantive result of the appeal so as to conclude there is “no just predicate for an award of costs again him and to [Ms Henry]”.3

[5]                 With regard to quantum, Mr Henry takes issue with the quality of Ms Henry’s “commencement of response to appeal or cross appeal”, noting in particular that a notice of opposition was not required. Mr Henry also opposes any entitlement for contributions to the production of the common bundle on the part of Ms Henry. In consequence Mr Henry submits that the maximum time attributable to the appeal is

4.85  days  rather  than  the  5.6  days  as  calculated  by  Mr  Macdonald,  a  total  of

$11,591.50. Mr Henry also submitted that the 20 cent per photocopy page claimed by Mr Macdonald was “exorbitant” and that as “most of the documents copied…some 100 pages, were not used in the appeal…the most that should be allowed for copy charges is $7.30.

1      Henry v Henry [2022] NZHC 2614.

2 At [16].

3      Noting that Mr Henry sought a recall of the judgment shortly after it was released. See Henry v Henry [2022] NZHC 2962.

Discussion

[6]                 As Mr Henry appeared to accept, the appeal proceeded in the High Court and it is the High Court Rules 2016 as to costs that are applicable.

[7]                 It is well established that costs ordinarily follow the event so that the losing party will pay the winning party’s costs.4 In this case, Mr Henry’s appeal was dismissed because it was clear that Judge Ryan was correct to conclude that there was no basis to strike out Ms Henry’s proceedings. It follows that there can be no dispute that Ms Henry was the successful party in this appeal and there is otherwise no good reason not to award costs according to scale.

[8]                 There is likewise no merit to the quantum issues raised by Mr Henry. The “commencement of response to appeal or cross-appeal” does not relate to the filing of any particular document, nor is the perceived quality of any response relevant. It is rather a notional allocation of time to reflect that the filing of an appeal will require a respondent to that appeal to give instructions to his or her lawyer in order to consider that party’s response to the filing of the appeal.

[9]                 Likewise, with regard to the common bundle issue, I have read the correspondence between the parties with regard to the common bundle and the subsequent filing of bundles by both parties. Having read that correspondence I conclude that it was not unreasonable for Ms Henry to file a bundle and to obtain costs in respect of that bundle. Finally, it is difficult to see on what basis a 20 cent per page disbursement is unreasonable, nor is there anything in Mr Henry’s submission that suggests that Ms Henry’s bundle was not referred to, and I note that I ultimately perused both bundles in preparing my judgment.

[10]             I therefore conclude that the costs and disbursements sought by Ms Henry are reasonable.

4      High Court Rules 2016, r 14.2.

Decision

[11]             Mr Henry is to pay Ms Henry costs of $13,384.00 together with disbursements of $34.60, a total of $13,418.60.

Powell J