Jones v White

[2024] NZHC 3777

NOTE: PURSUANT 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.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-000114

[2024] NZHC 3777

UNDER

The Property (Relationships) Act 1976

BETWEEN

MR JONES

Apellant

AND

MS WHITE

Respondent

Hearing:	(On the papers)
Counsel:	D D Vincent as Litigation Guardian for Appellant V A Nathan for Respondent
Judgment:	11 December 2024

JUDGMENT OF LA HOOD J

(Costs)

[1]    In my judgment dismissing Mr Jones’s appeal dated 15 November 2024, I directed the filing of costs memoranda if agreement could not be reached.1

[2]    The respondent has filed memoranda dated 30 November and 6 December 2024 seeking scale costs on a 2B basis, totalling $14,818.

[3]    Mr Jones’s litigation guardian, Mr Vincent, in submissions dated 2 December 2024, submits that costs should not follow the event, and should lie where they fall

1      Jones v White [2024] NZHC 3410.

JONES v WHITE [2024] NZHC 3777 [11 December 2024]

because the Family Court did not award costs against Mr Jones. The Family Court noted that Ms White is legally aided and declined to make a recommendation that her legal aid grant be written off under s 43 of the Legal Services Act 2011 because there was no jurisdiction to do so. Also, the Family Court declined to order occupational rent to be paid by Mr Jones under s 18B of the Property (Relationships) Act 1976 because, having regard to Mr Jones’s incapacity, the Judge was not satisfied that he was wilfully obstructing the sale of the home in a way that a person with awareness and capacity might be accused of doing. Mr Vincent further submits this is not a case where Mr Jones has brought an unmeritorious appeal, but rather a case where he feels that he is the victim of a significant and enduring injustice.

Decision

[4]The following principles apply:

(a)Although the historic position is that costs did not automatically follow the event for family disputes, the current approach is to recognise that the successful party in property relationship cases can be expected to receive costs in the same way as any other civil litigant.2

(b)A successful legally aided party is entitled to scale costs provided the total grant exceeds the appropriate award of scale costs.3

(c)The Court must disregard the fact that a person is represented by a litigation guardian in awarding costs either for or against the incapacitated person.4 McGechan on Procedure describes the underlying policy reason for this as follows:5

HR4.41.01 Incapacity or minority disregarded  in  awarding costs

… Incapacity or minority is irrelevant between the parties, because costs awards are intended to reflect, objectively, how the proceeding has been conducted and to compensate a party that has been put to

2      Prakash v Gupta [2024] NZHC 3285 at [3].

3 At [4].

4      High Court Rules 2016, r 4.41; Broadbent v Chief Executive of the Ministry of Social Development

[2017] NZHC 2123 at [4].

5      Andrew Beck and others McGechan on Procedure (looseleaf ed, Brookers) at [HR4.41.01].

unnecessary expense by another party’s conduct of the proceeding. Once costs between the parties have been determined rr 4.42 to 4.44 address how costs are to be allocated between the incapacitated person and litigation guardian.

[5]It follows that the respondent is entitled to scale costs on a 2B basis.

[6]I therefore order the appellant to pay the respondent’s costs in the sum of

$14,818.

La Hood J

Solicitors:

Cullinane Steele Limited, Levin for Appellant Nathan Family Law, Lower Hutt for Respondent