K v K - [2023] NZHC 1020

NOTE: PURSUANT TO S 169 OF THE FAMILY PROCEEDINGS ACT 1980, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

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IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2022-443-48 CIV-2022-443-47

[2023] NZHC 1020

UNDER The Property (Relationships) Act 1976 and the Family Proceedings Act 1980

IN THE MATTER OF

an appeal against the decision of the Family Court

BETWEEN

Mrs K Applicant

AND

Mr K Respondent

On the Papers

Appearances:

B M Burke for the Applicant Respondent in person

Judgment:

2 May 2023

JUDGMENT OF GWYN J

(Costs)

Introduction

[1] On 28 November 2022 I gave judgment on Mrs K’s application for an order under s 182 of the Family Proceedings Act 1980 (FPA).1

1 K v K [2022] NZHC 3123 [judgment].

K v K [2023] NZHC 1020 [2 May 2023]

[2] I made an order pursuant to s 182 of the FPA varying the Trust Deed of a Trust settled by the parties jointly, to enable an equal division of the Trust’s assets between the parties, subject to certain specified adjustments in the applicant’s favour.

[3] I also made an order removing the respondent as trustee of the Trust, pursuant to s 112 of the Trusts Act 2019, and vested all Trust property in the applicant and the independent trustee.

[4] Ancillary orders were directed at the sale of Trust property and steps necessary to effect the sale.

[5] I directed that the parties were to file any submissions in respect of costs within 14 days of the judgment, to be determined on the papers.

[6] Counsel for Mrs K sought an extension to that date and in accordance with the extension filed her submissions on 19 December 2022. Unfortunately, Ms Burke’s submissions were not referred to me until 15 February 2023. No submissions have been received from Mr K.

Background

[7] The proceedings between the parties commenced in the Family Court as relationship property proceedings, subsequently amended to include the application pursuant to s 182 of the FPA. The proceedings were transferred to the High Court on 25 July 2022. In both the Family Court and the High Court, the proceedings followed a somewhat tortuous process, which is set out in the judgment.2

[8] The applicant seeks costs in respect of both the Family Court and High Court proceedings, on the basis that they have been one continuous proceeding.

2 At [5]–[26].

The law

[9] Counsel for Mrs K helpfully sets out the relevant provisions under each of the Property (Relationships) Act 1976 (PRA), the FPA, the Family Court Rules 20023 and the High Court Rules 2016 (Rules).

[10] Ms Burke submits that this is an appropriate case for an increased costs award pursuant to r 14.6(3) of the Rules. Counsel submits that an appropriate uplift on 2B costs is at least 50 per cent.

Categorisation of the proceedings and time…

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.

Continue reading K v K

Details

AGLC: K v K [2023] NZHC 1020
Case: [2023] NZHC 1020
Decision Date: 2 May 2023

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal concerning an application for an order under section 182 of the Family Proceedings Act 1980 (FPA) between Mrs K, the applicant, and Mr K, the respondent. The primary dispute involved the division of assets held in a Trust settled by the parties jointly. The Family Court had previously ordered the Trust Deed to be varied to enable an equal division of the Trust’s assets between the parties, and Mr K was removed as trustee of the Trust. The proceedings were subsequently transferred to the High Court.

The legal issues the court needed to decide included whether an increased costs award was appropriate and if so, what percentage of uplift on the costs should be awarded to the applicant. The applicant argued for an uplift of at least 50 per cent of the 2B costs. The court considered the complexity of the proceedings, the conduct of the parties and their legal advisors, and the overall interests of justice in determining the appropriate costs award.

The court found that Mr K had unnecessarily prolonged the proceedings by failing to engage with Court directions and proposals. His actions left Mrs K in a dire financial situation while he continued to enjoy the benefit of the parties' assets. The court held that there were grounds for an increased award of costs against Mr K. It concluded that a 50 per cent uplift on the 2B costs was appropriate to compensate Mrs K for a large portion of her legal fees.

The final orders included that Mrs K was entitled to 2B costs, calculated according to the Family Court Rules for the Family Court part of the proceedings and the High Court Rules for the High Court proceedings, with a 50 per cent uplift, plus disbursements.

Orders