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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NZHC 202
Decision Date: 20 February 2012

CaseChat Overview and Summary

The High Court of New Zealand Auckland Registry dealt with an appeal in the case of Jew v TAB and HJH and Jew. The appellant, Jew, challenged a Family Court decision that modified distributions to the respondents, TAB and HJH, such that each respondent was to receive 12% of the residual estate instead of 24%. The appellant sought costs on a 2B basis, while the respondents argued that costs should lie where they fall, considering the context of the Family Court proceedings. The appellant contended that the appeal was necessitated by the Family Court decision and that the ordinary principles of costs should apply.

The legal issues before the court were the application of costs rules in appeals and the principles determining costs. The court referred to the general principles set out in the rules, including the principle that the party who fails in a proceeding or an interlocutory application should pay costs to the party who succeeds. The court also noted the principle that the determination of costs should be predictable and expeditious. The court assessed success or failure in the context of the end result rather than focusing on the initiation of steps.

The court considered that the respondents' proceedings were justified as both courts found a breach of the moral duty. However, it was not entirely correct to say that the appellant was successful because the appellant failed to overturn the Family Court's finding that the moral duty was breached. The court concluded that the appropriate balance was that costs should lie where they fall, considering the context of the Family Court proceedings and the nature of the appeal.

The court ordered that costs should lie where they fall, considering the context of the Family Court proceedings and the nature of the appeal. The court did not grant the appellant's request for costs on a 2B basis.

Orders