JK v KL

[2023] NZHC 37

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, 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-2022-404-787

[2023] NZHC 37

IN THE MATTER

of the Care of Children Act 2004

BETWEEN

JK

Appellant

AND

KL

First respondent

LM
Second respondent

Continued overleaf

Hearing:

On the papers

Appearances:

JK in person

V A Crawshaw KC and S M Wilson for KL and LM MN in person

S L Abdale, for litigation guardian of NO (CIV-2022-404-1503) M K Headifen, lawyer for child

Date of judgment:

27 January 2023

JUDGMENT OF JAGOSE J

[Costs]

This judgment was delivered by me on 27 January 2023 at 5.00pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

JK v KL - Costs [2023] NZHC 37 [27 January 2023]

MN

Third respondent

CIV-2022-404-1503

UNDER  the Care of Children Act 2004 section 143 IN THE MATTER  of an appeal against the decision of the

Family Court

BETWEEN  NO

Appellant

AND  KL and LM

First respondents

JK and MN

Second respondents

[1]    My 30 September 2022 judgment, upholding the mother’s appeal, took the preliminary view:1

… as the unsuccessful parties in this averagely complex proceeding requiring counsel of average skill and experience, and in which a normal amount of time is considered reasonable for each step on the appeal — the grandparents jointly and severally should pay 2B costs to [the child]’s litigation guardian. As a litigant in person, [the] mother is not entitled to an award of costs.

[2]    2B costs are calculated to amount to $10,755. The litigation guardian incurred lesser costs of $10,283,2 which the grandparents have agreed to pay. The grandparents also accept the mother, as a litigant in person, is entitled only to claim disbursements.3

[3]    The mother claims disbursements of $540 in court filing fees and perhaps “the costs of preparing the Bundle of Documents for the appeal”. The former clearly is a reimbursable disbursement; so too may be the latter to the extent it is the mother’s reasonable and verified out-of-pocket expense in producing the common bundle,

1      JK v KL [2022] NZHC 2503 at [43] (citation omitted).

2      High Court Rules 2016, r 14.2(1)(f).

3      McGuire v Secretary for Justice [2018] NZSC 116, [2019] 1 NZLR 335 at [55] and [88].

which I approve as a class of disbursement for the purposes of the proceeding.4 I will order the grandparents pay the mother those specific disbursements, any dispute as to the latter’s reasonableness and verification to be determined by the Registrar.5

[4]    However, the mother additionally seeks reversal of an award of costs against her arising from any earlier interlocutory matter,6 and also contends for unquantified indemnity costs.7

[5]    I am not satisfied the original order for costs should not have been made.8 To the contrary, in principle and practice,9 it was the “predictable and expeditious” consequence of the mother’s unsuccessful application to adduce further evidence on appeal before me.10 If “special reasons to the contrary” may have justified some diversion from that position, it was for Powell J to decide. The mother’s ultimate substantive success gives me no basis for ‘subsequent’ satisfaction the original order for costs should not have been made. I will not reverse the original order for costs.

[6]    The statutory threshold for indemnity costs is of “distinctly bad behaviour”,11 constituting the “flagrant” or “very unreasonable” misconduct threshold for consideration of indemnity costs.12 Nothing in the grandparents’ conduct approaches that threshold. I would not award indemnity costs to the mother, even if — as a litigant in person — she was entitled to claim them. There accordingly is no set-off to make.13

[7]I therefore:

(a)order the grandparents pay:

(i)the child’s litigation guardian $10,283;

4      High Court Rules, r 14.12.

5      Rule 14.12(4).

6      [JK] v [KL] [2022] NZHC 2670.

7      High Court Rules, r 14.6(4).

8      High Court Rules, r 14.8(2).

9      Rules 14.2(1)(a) and (g) and 14.8(1).

10     [JK] v [KL] [2022] NZHC 2279.

11     Bradbury v Westpac Banking Corporation [2009] NZCA 234, [2009] 3 NZLR 400 (CA) at [26].

12     Prebble v Huata (No 2) [2005] NZSC 18, [2005] 2 NZLR 467 at [6]; and Flujo Holdings Pty Ltd v Merisant Co Inc [2018] NZCA 226 at [34].

13     High Court Rules, r 14.17.

(ii)the mother $540 on account of filing fees, plus her reasonable and verified expense incurred in producing the common bundle; and

(b)in the event of any dispute as to the reasonableness or verification of the last, direct the Registrar to exercise the powers of the Court.14

—Jagose J

Counsel/Solicitors:

V A Crawshaw KC, Auckland S L Abdale, Barrister, Auckland

M K Headifen, Barrister, Auckland Tompkins Wake, Auckland

Copy to:

JK MN

14     Rule 14.12(4).