Jew v TAB

[2012] NZHC 202

NOTE: PURSUANT TO THE FAMILY PROTECTION ACT 1955, 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 AUCKLAND REGISTRY

CIV2011-404-000613 [2012] NZHC 202

BETWEEN  JEW Appellant

ANDTAB AND HJH AND JEW Respondents

Hearing:         (On Papers)

Counsel:         G J Kohler for Appellant

D A Wood for Respondents

Judgment:      20 February 2012

COSTS JUDGMENT OF WHATA J

[1]      In my judgment of 28 July 2011 I allowed an appeal from the Family Court decision, with the effect that distributions to the respondents were modified such that each of the respondents was to receive 12% of the residual estate, rather than 24% of the value of the estate.

[2]      The appellant seeks costs on a 2B basis.  The respondents contend that costs should lie where they fall, having regard to the wider background of the Family Court proceedings, prior to which they were not to receive any disposition of the residue of the estate.   The appellant responds that this was an appeal to the High Court, necessitated by a Family Court decision.   The appeal was opposed by the respondents.   In those circumstances the ordinary principles of costs following the

event are said to apply.

JEW V TAB AND HJH AND JEW HC AK CIV 2011-404-000613 [20 February 2012]

Jurisdiction

[3]      The power of the High Court on appeal to make an order of costs can be found at r 20.19(1)(c), which provides that this Court may “make any order the court thinks just, including any order as to costs”.

[4]      The commentary in McGechan detailed that costs rules are equally applicable to appeals citing Air New Zealand Ltd v Commerce Commission (2005) 17 PRNZ

786.

[5]      Part 14 deals with costs generally, with the general discretion of the Court towards costs confirmed at r 14.1.  The general principles determining costs are set out at r 14.2, and relevantly here it records that:

14.2     Principles applying to determination of costs

The following general principles apply to the determination of costs:

(a)       the party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds:

[6]      Relevant also is the principle articulated at r 14.2(g) that so far as possible the determination of costs should be predictable and expeditious.

[7]      As the Court of Appeal stated in Packing In Ltd (in liq) formerly known as

Bond Cargo Ltd v Chilcott (2003) 16 PRNZ 869 (CA):

Success or failure in this context is better assessed by a realistic appraisal of the end result rather than by focusing on who initiated what step, and the extent to which that step succeeded or failed.

(at 871)

[8]      In this case, proceedings were commenced by the respondents in relation to a failure by PAW to properly provide for all of his children.   Indeed, it is common ground between both the Courts, that PAW did not discharge that duty.  The primary difference  between  the  High  Court  and  the  Family  Court  is  the  extent  of  the necessary repair to remedy that breach.  In those circumstances it is somewhat of a misnomer to describe the respondents as the losing party.  Their proceedings were

justified insofar as both Courts found a breach of the moral duty.   Conversely, it would not be entirely correct to say that the appellant was successful because the appellant failed in its bid to overturn the finding of the Family Court that the moral duty was breached.  My response might have been different if the appeal was solely related to quantum.  The appellant could then quite rightly have been said to have succeeded.

[9]      In these circumstances I consider that the appropriate balance is, however, that costs should lie where they fall.[1]

[1] This was the approach of Rodney Hansen J in  Burnage v Gleeson & Ors HC Whangarei CIV 2010-488-151, 27 August 2010 .    See also the decision of Asher J in Barker v Barker HC Auckland CIV 2006-404-000181, 7 December 2006

Solicitors:

Gellert Ivanson, PO Box 25239, St Heliers, Auckland 1740

Allen, Needham & Co., PO Box 12, Morrinsville 3340

Copy to:

G J Kohler, PO Box 4338, Auckland, 1140

D A Wood, PO Box 1452, Shortland Street, Auckland 1140