K v K

[2021] NZHC 2787

NOTE: 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://

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-000397

[2021] NZHC 2787

BETWEEN

K

Appellant

AND

K

Respondent

Hearing:

On the papers

Appearances:

Appellant self-represented

E Snedden for the Respondent

Judgment:

19 October 2021

JUDGMENT OF WALKER J

[Application for leave to appeal costs orders]

This judgment was delivered by me on 19 October 2021 at 3 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

K v K [2021] NZHC 2787 [19 October 2021]

Introduction

[1]    On 17 September 2021, I awarded 2B costs of $7,528.50 in favour of the respondent in respect of Ms K’s application for leave to appeal a decision of the Family Court out of time.1 Notwithstanding Ms K’s success on the application for leave, the grant of leave was an indulgence and the respondent’s opposition was not without merit. I made no costs order in respect of Ms K’s successful appeal of the decision declining her application for rehearing in the Family Court. This is because Ms K had succeeded on a point not raised by her, but which emerged during the hearing and which necessitated remitting that decision back to the Family Court. In addition, there is the principle that a self-represented litigant is not entitled to an award of costs other than disbursements.

[2]    Ms K then applied for ‘rescission’ of the costs judgment. I treated that request as an application to recall the judgment. I declined to recall my costs judgment, having concluded that the application did not meet the categories for which recall is available.2

[3]    Ms K now seeks leave to appeal the costs decision to the Court of Appeal and the decline of her application to “rescind” or “vary” such order.

[4]    The respondent has filed a memorandum in which counsel advises that “the Appellant makes various submissions, all of which are opposed by Mr K”. I apprehend this is to be read as a wholesale opposition to the application for leave.

Background

[5]    The first matter before me was an appeal of a decision of the Family Court declining to rehear the substantive proceedings between Ms K and Mr K. Ms K had been the successful party in the Family Court proceedings but was dissatisfied about the quantum of the award. She sought a rehearing which was dismissed by the Family Court. The appeal was brought by Ms K within time. The second matter was an application for leave to appeal out of time the substantive decision of the Family Court.

1      K v K [2021] NZHC 2475 [Cost’s decision].

2      Minute of Walker J dated 8 October 2021.

[6]    I allowed the appeal on the rehearing matter on a narrow basis, namely that the Family Court had erred in holding it had no jurisdiction to determine an application for rehearing which was not filed within time.3 I made no finding in respect of the substance of the rehearing application but remitted that matter back to the Family Court.

[7]    I granted leave to appeal the Family Court decision because of the particular and somewhat unusual circumstances which meant that it was in the interests of justice to extend time to allow Ms K to lodge her appeal.4 The merits or otherwise of the appeal were not canvassed in my judgment.

[8]    In my costs decision I held that the respondent was entitled to costs on the leave to appeal application because an indulgence had been granted to Ms K. In my discretion, I significantly reduced the quantum of costs sought by the respondent to reflect, among other things, my assessment of apportionment between the two matters argued. I held that costs and disbursements should lie where they fell in respect of the appeal of the rehearing matter because it had succeeded on a ground which Ms K had not advanced in her application, but which emerged at the hearing.5

The principles

[9]    No automatic right of appeal exists against a costs order where an appeal from the related substantive decision is only with leave.6 In other words, if there is no appeal as of right against the decision to which the costs relate (the decision granting leave to appeal out of time), there is no appeal as of right against the costs determination.

[10]   The application for an extension of time in which to appeal the Family Court decision was an interlocutory application.7 Section 56(3) of the Senior Courts Act 2016 provides:

3      See K v K [2021] NZHC 1743 [Substantive decision] at [33].

4 At [64].

5      Ms K was not represented at the hearing and remains unrepresented.

6      See Reid v New Zealand Fire Service Commission [2010] NZCA 133, (2010) 19 PRNZ 923.

7      High Court Rules 2016, r 20.4(4)(a).

(3)No appeal, except an appeal under subsection (4), lies from any order or decision of the High Court made on an interlocutory application in respect of any civil proceeding unless leave to appeal to the Court of Appeal is given by the High Court on application made within 20 working days after the date of that order or decision or within any further time that the High Court may allow.

[11]   Thus, leave is required because Ms K is seeking to appeal a cost order made in respect of an interlocutory application. An application for recall is also an interlocutory application, being relief ancillary to that claimed in a pleading.8 I deal with both aspects of the application for leave to appeal together because of their overlapping nature.

[12]   Ms K filed the application for leave to appeal without notice on the basis “there is now urgency to enable matters to proceed to the appeal court”. It appears that Ms K is labouring under a misapprehension as to the effect of the rules. I required that the application be served on the respondent and invited a response.

[13]   Under s 56(3), Ms K had 20 working days from 17 September 2021 to apply for leave to appeal the costs order relating to her successful application for leave to appeal the decision of the Family Court out of time. This gave her until 15 October 2021. Ms K filed a notice of appeal on 11 October 2021. It was plainly within time. If I grant leave to appeal to the Court of Appeal, Ms K then has 20 working days from the date of the decision granting leave in which to bring her appeal unless I should set a specific time frame.9 If leave is declined under s 56(3), Ms K has 20 working days from the date of the decision refusing leave in which she may apply directly to the Court of Appeal for leave under s 56(5).

[14]   I turn now to consider whether leave should be granted in this instance. The following principles are relevant when considering an application for leave to appeal from an interlocutory application:10

(a)A high threshold exists for the grant of leave.

8      Tamihere v Commissioner of Inland Revenue [2018] NZHC 266 at [6].

9      Court of Appeal (Civil) Rules 2005, r 29(1)(b)(ii).

10 Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [9] referring to A v Minister of Internal Affairs [2017] NZHC 887. These principles have since been adopted by the Court of Appeal. See, for example, Power v White [2021] NZCA 454 at [4].

(b)An allegation of error of law or fact is generally insufficient. An applicant should identify an arguable error of law or fact.

(c)Leave should only be granted where the circumstances warrant incurring further delay (which is not as relevant to the issue of a costs appeal).

(d)The alleged error should be of general or public importance that requires determination, or otherwise be of sufficient importance to the applicant to outweigh the lack of any general or precedential importance.

[15]   The exercise then requires the court to “stand back and assess, in a pragmatic and realistic way, whether the interests of justice are served by granting leave to appeal”.11

[16]   Ms K wishes to appeal the costs decision on the grounds set out in a draft notice of appeal annexed to her application as follows:

(a)the award of costs of $1,484 in respect of a notice of opposition and affidavit is an error as no notice of opposition was filed and the affidavit contained false and misleading statements such that an award of costs is contrary to justice (grounds one and two);

(b)the respondent had misled the Court by purporting that the decision of the Family Court had been forwarded to the parties earlier than was the case and did not admit the actual date prior to the due date for submissions (ground three);

(c)there were no additional costs incurred by the respondent on the application for leave to appeal as the respondent’s memorandum and responses relied on the same misleading suggestions in respect of all matters before the High Court (ground 4);

11     Finewood, above n 10, at [14].

(d)costs were awarded in regard to delay which was unavoidable due to the actions of the respondent (ground five);

(e)costs were awarded for resubmission of earlier submissions “with the only additional comment having pertained to it being the second submission and costs thereof” (ground six); and

(f)costs should not have been awarded contrary to the principle that “the party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds” (ground seven).

[17]   Ms K elaborated further on some of these grounds in her application for leave. In particular, she sets out the chronology relating to preparation of submissions and submits that “it would not be just to hold [her] responsible for that delay and consequentially award costs in Mr K’s favour”. She urges that Mr K should bear his own costs in all the matters that were before the High Court.

[18]   The respondent, in his memorandum, has not specifically addressed the principles of leave but has instead focused on the merits of the proposed appeal. He vehemently denies trying to mislead or confuse the Court in his evidence. The memorandum states:

[13] It is submitted for the Respondent that the Appellant is a vexatious litigant. The Appellant relentlessly files unnecessary documentation which prejudices the Respondent. The Respondent has consistently complied with all Court timetabling, directions and Orders through Counsel. He has incurred significant and unnecessary cost due to the Appellant’s actions, and his health is deteriorating because of it.

Result

[19]   I dismiss the application for leave to appeal the cost order and refusal to recall the cost order. My reasons may be shortly stated.

[20]   In my assessment, none of the grounds advanced by Ms K identify an arguable error. Some of the purported grounds misdescribe the costs judgment. For example, regarding delay, the costs judgment states “[t]he delays and additional attendances

arising from the error in date calculation is an error that both parties have responsibility for but does not alter the costs assessment”.12 I do not accept that any costs duplication is identified in the grounds of appeal. Duplicative costs were identified and removed in the assessment of costs. Success on an application granting an indulgence is an exception to the general rule that costs follow the event. The respondent’s opposition to leave to appeal out of time had merit. It was not an instance where leave to appeal would inevitably have been granted such that opposition was unrealistic or unwarranted.

[21]   There is no general or precedential value in the proposed costs appeal. I acknowledge that a cost order is a burden to Ms K but this must be balanced against the impact of an appeal on the respondent who would be put to more cost. This in circumstances where the ultimate award of costs in his favour was significantly less than his original claim to costs. The interests of justice do not favour granting leave.

[22]   Having declined leave, the respondent is entitled to 2B costs for the memorandum filed in opposition to this application.

............................................................

Walker J

12     Cost’s decision, above n 1, at [9].