Hibell v Rogers

[2022] NZHC 2157

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2019-470-000109

[2022] NZHC 2157

BETWEEN

DEBBIE MICHELLE HIBELL

Appellant

AND

TIMOTHY PETER ROGERS

Respondent

Hearing:	On the papers
Counsel:	K L Hoult for Appellant K M Dyer for Respondent
Judgment:	30 August 2022

JUDGMENT OF HINTON J

[Costs]

This judgment was delivered by me on 30 August 2022 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:           Niemand Peebles Hoult, Hamilton

Holland Beckett Law, Tauranga

HIBELL v ROGERS [2022] NZHC 2157 [30 August 2022]

[1]                 On 15 May 2020 I delivered judgment in favour of the respondent, Mr Rogers, upholding a Family Court decision which set aside a contracting-out relationship property agreement.1 I adjourned consideration of costs in this Court pending the final determination of substantive relationship property proceedings in the Family Court.2

[2]                 The reason for the adjournment was that Mr Rogers considered that the appellant, Ms Hibell, had unreasonably failed to accept a settlement offer and accordingly sought increased costs. The settlement offer needed to be compared against the outcome of the substantive relationship property proceedings in the Family Court to determine whether it was unreasonable for the appellant to reject it.

[3]                 On 27 May 2022 Judge Coyle delivered judgment in favour of Mr Rogers in the sum of $432,884.  The settlement  offer was $300,000, which would have put  Ms Hibell in a significantly better position had she accepted it. Ms Hibell does not argue to the contrary.

[4]                 Mr Rogers applies to the Court for a 50 per cent uplift for Ms Hibell failing without reasonable justification to accept an offer of settlement and pursuing an argument on appeal that lacked merit.

[5]                 Ms Hibell’s position is that costs should be fixed at scale and no uplift should be applied. There is otherwise no challenge to the calculation of costs.

[6]                 Ms Hoult for Ms Hibell submits that all matters under the Property (Relationships) Act 1976 (PRA), including costs, ought to be considered in light of its objects and purpose. That may be so, but as s 40 of the PRA provides the Court may make such order as to costs as it thinks fit. Numerous decisions of this Court have confirmed that costs in PRA proceedings are generally dealt with under the standard civil rules.3

1      Hibell v Rogers [2020] NZHC 877.

2      Hibell v Rogers HC Auckland CIV-2019-470-109, Minute of 20 October 2020.

3      Thompson v Public Trust (as administrator of the estate of Hillman) [2014] NZHC 2434. See Radisich v Taylor HC Auckland CIV 2007–404–7578, 16 April 2008; Martin v March [2015] NZHC 416; FT v JML [2012] NZHC 1388; Van selm v Van selm [2015] NZHC 641; and Campbell v Goldie [2019] NZHC 1573.

[7]                 Ms Hoult also submits that it was reasonable for Ms Hibell to decline an offer of settlement with respect to the substantive application for division of relationship property while awaiting the subject High Court appeal. Ms Hoult says Ms Hibell has a right to appeal and exercised it in an appropriate way. Further she submits that the law under s 21J of the PRA is not wholly settled.

[8]                 The thrust of this point was considered in Bowden v Bowden, where this Court stated:4

[26]     Ultimately    the    question    of    the    effect    and    influence    of  a Calderbank offer will remain, as with costs generally, one of discretion. The purpose of recognising Calderbank offers in costs awards is to provide a disincentive to litigate where a reasonable settlement is available. It is difficult to understand why that disincentive should not extend to appellate litigation brought by an unsuccessful party in a bid to be heard further on the same issues argued at first instance, often by way of rehearing, who refused an original offer that could have spared the other party the cost of litigation.

[9]                 The principle is applicable in this case. The offer was made on 9 July 2019 (one month prior to the hearing of the Family Court decision appealed from) and renewed on 3 October 2019 following the release of the decision. The settlement offer was a disincentive to pursue both the appeal and the substantive proceedings. I consider that an uplift for failing to accept a Calderbank offer is appropriate. Further, the law on s 21J is clear enough, particularly in a context such as this case.

[10]              The parties disagree about whether Ms Hibell advanced a meritless argument (or arguments) regarding alleged errors on the part of the Family Court Judge. I agree with the respondent that the appellant’s arguments were of limited merit but I would not put this in the category of a hopeless case.

[11]              For the above reasons I consider it appropriate to award a 50 per cent uplift on scale 2B costs. The end result is still well below the actual costs incurred by the respondent.

4      Bowden v Bowden [2017] NZHC 1841.

Result

[12]Costs are awarded in favour of Mr Rogers with an uplift of 50 per cent, totalling

$17,208.

Hinton J