K v K

[2021] NZHC 2475

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

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-000397

[2021] NZHC 2475

BETWEEN

K

Appellant

AND

K

Respondent

Hearing:

On the papers

Appearances:

Appellant self-represented

E Snedden for the Respondent

Judgment:

21 September 2021

COSTS JUDGMENT OF WALKER J

This judgment was delivered by me on 21 September 2021 at 3 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

K v K [2021] NZHC 2475 [21 September 2021]

[1]                 Ms K was the successful party in my judgment delivered on 12 July 2021. First, in obtaining leave to appeal a decision of the Family Court out of time (Leave Decision). Secondly, in her appeal of a decision by the Family Court dismissing her application for rehearing (Rehearing Determination) because her application was not made within time.

[2]                 The effect of my judgment on the Leave Decision was to grant Ms K an indulgence whilst making no comment on the merits of any prospective appeal. I indicated then my provisional view that the respondent is entitled to costs on that application for that reason and notwithstanding Ms K’s success.

[3]                 In respect of Ms K’s successful appeal of the Rehearing Determination, I indicated that I would make no order as to costs as 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 well-established principle that a self-represented litigant is not entitled to costs other than disbursements. Again, my decision did not traverse the merits or otherwise of the substantive application for rehearing.

[4]                 I invited the parties to reach agreement and put in place a timetable for the filing of memoranda if that was not possible. I have now received a memorandum on behalf of Mr K seeking costs and a memorandum in response from Ms K opposing an award of costs.1 Mr K’s counsel has confirmed to the Registry that there is no intention to reply to that memorandum.

[5]                 Mr K now seeks costs of $16,849.50 calculated on a 2B basis for the half day hearing. Counsel has confirmed that the actual legal costs incurred by the respondent substantially exceed the ‘scale’ costs claimed. Counsel also refers to the impact of having to prepare and file legal submissions twice, attributed to Ms K’s non- compliance with timetabling directions.

1      Memorandum on behalf of respondent dated 16 July 2021. Memorandum on behalf of appellant dated 22 July 2021.

[6]                 Ms K seeks to persuade me that my provisional view is wrong; that no costs order should be made in Mr K’s favour, that the costs sought are excessive or unwarranted and that regard ought to be had to her own out of pocket expenses including hearing fees and photocopying costs.

[7]                 As I apprehend her memorandum, Ms K argues that had the respondent admitted at the outset that the Rehearing Determination was only distributed to the parties on 25 February 2021, the confusion and delay besetting the appeal would have been avoided.2 It would have been self-evident that it was filed within time. Ms K goes so far to suggest that in fact none of the costs would have been incurred because all matters may have been otherwise resolved without a hearing in the High Court. She refers to r 14.7(f)(iii) of the High Court Rules 2016 and contends that costs should be refused or reduced as a consequence of the failure to admit facts without reasonable justification.

[8]                 This submission is difficult to understand without context so it becomes necessary to set out the pre-hearing steps:

(a)Ms K filed a notice of appeal dated 10 March 2021 for special leave for an extension of time to appeal both the decision of the Family Court declining her application for rehearing and the substantive Family Court decision dated 4 December 2020. This was an error in that no leave was in fact required to appeal the Rehearing Determination.

(b)On 8 April 2021 Ms K filed a memorandum for the case management conference scheduled on 13 April 2021. She pointed out in that memorandum that the decision of the Family Court dismissing her application for rehearing was not issued to the parties until 25 February 2021 so an extension of time to appeal may not be required. In that memorandum she stated, “Should Mr K agree to appeal of this and the

2      Ms K submits that it was not until 27 April 2021 when submissions were due that the respondent acknowledged that the decision of the Family Court on the rehearing application was only notified to the parties on 25 February 2021.

Family Court oblige by undertaking a rehearing, it is possible matters may be simplified at this stage”.

(c)On the same day, counsel for Mr K filed a memorandum responding to the appeal proceedings. The memorandum did not distinguish between the two different decisions of the Family Court in issue other than to record that the Rehearing Determination was made on 21 January 2021 and to state more generally that the appeal proceedings were significantly out of time.

(d)The minute of Powell J dated 13 April 2021 recorded Ms K’s acknowledgment that both appeals are out of time and as a result leave is needed to extend time. It appears this was also the position taken by the respondent. Ms K’s acknowledgment unfortunately compounded the error in respect of the appeal of the Rehearing Determination. Consequently, the Judge directed that the applications to extend time be heard first on 18 May 2021; Ms K was to file her submissions in support by 27 April 2021, with responsive submissions to be filed by 11 May 2021.

(e)Ms K filed a further memorandum on 27 April 2021 setting out reasons for delay in provision of the bundle of documents.

(f)The next day, she filed a memorandum recording that Mr K now agreed that the appeal of the Rehearing Determination was within time. If that allowed matters to be returned to the Family Court, she argued that it would be prudent to adjourn the application for leave to appeal the substantive Family Court decision to save time and costs. As it was now uncertain as to what should be addressed in the bundle and submissions given the previous directions, she sought further directions from the Court to determine whether the hearing should deal only with the appeal of the Rehearing Determination.

(g)On 30 April 2021, counsel for Mr K filed a memorandum acknowledging that the appeal against the Rehearing Determination was filed within time, remained opposed on substantive grounds and should be dealt with at the same time as the application for special leave to appeal the substantive decision.

(h)Powell J issued a further minute dated 7 May 2021 recording the now common position that the appeal of the Rehearing Determination was within time and declining to split the two issues for reasons of efficiency.

(i)On 11 May 2021, having sought an urgent conference, counsel for Mr K filed a memorandum to address matters of “non-compliance”. She noted that despite receiving Ms K’s submissions 14 days after the due date and late in the evening, Mr K had filed his submissions the following day in accordance with the timetable with no real opportunity to respond, causing “unnecessary delay, additional cost and serious prejudice” to Mr K.

(j)Ms K responded by memorandum the following day explaining the reason for non-compliance which she described as having resulted from a “significant change to matters to be determined” following the change in position by the respondent. In particular the late acknowledgement that the appeal of the Rehearing Determination was within time resulting in the clarification on 7 May 2021 as to what would be determined at the scheduled hearing.

(k)In a minute dated 11 May 2021, Lang J permitted the respondent a further period for supplementary submissions to address issues omitted from his original submissions and which were needed to respond to the appellant’s submissions.

[9]                 The sequence of events explains, in part, Ms K’s difficulties with the timetable for filing submissions. The 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. The confusion could have been avoided by an earlier acknowledgement and further attendances avoided but, materially, Mr K has not sought increased costs nor costs for all memoranda filed in the pre-hearing period.

[10]              In addition to the more substantive opposition to an award of costs, Ms K challenges five aspects of the quantum of the claim.

[11]              First, she submits that there is no justification for claiming for second counsel. I agree that the matter was of average complexity, there was no extensive documentation, and second counsel was not necessary.3 I decline to allow for second counsel.

[12]              Secondly, she asserts that the respondent’s cost claim includes costs of the appeal of the Rehearing Determination because memoranda and affidavit evidence dealt with both issues. She contends that this conflicts with my direction that no order for costs would be made in respect of that appeal. I accept this submission in part only. I consider that 50 per cent of the half day hearing was accounted for by argument relating to the appeal against dismissal of the application for rehearing. I allow the respondent 50 per cent of the costs calculated on a 2B basis for the half day appearance. The appropriate allowance is $597.50.

[13]              Related to this, I consider there is duplication in the schedule. There is a claim in respect of the filing of a notice of opposition and supporting affidavits (step 38) followed by a claim in respect of commencement of response to appeal (step 53). The respondent also seeks an allowance of three days for the preparation of written submissions (step 56) which is the appropriate allowance for appeals but not for applications for leave to appeal. As explained, the costs at issue are those in respect of the opposition to the application for leave, not for opposing the appeal of the Rehearing Determination. The appropriate step is, by analogy, step 23: filing opposition to an interlocutory application. I therefore disallow the claims in respect

3      This is not to be understood as criticism. It is incumbent on more senior members of the profession to assist the training of less experienced counsel by permitting them to appear as junior counsel at hearings.

of steps 38, 53 and 56 and substitute claims on a 2B basis for steps 23 and 40. The appropriate allowance is for 1.5 days or $3,585.00 for preparation of written submissions and 0.6 days for the filing of a notice of opposition, namely $1,434.00.

[14]              Thirdly, Ms K argues that it is not reasonable to claim costs for memoranda. She contends that she had offered options for joint memoranda on 27, 28 April 2021 and for the mentions hearing on 11 May 2021. Further that the respondent was himself responsible for confusion and delay. I accept that the need for multiple mentions arose in part from the late acknowledgment of the timing of the issue of the Rehearing and uncertainty which then followed as to the nature of the hearing (albeit that both parties share responsibility for that). It is unfortunate that the issue was not cleared up at the outset at the first case management conference but it is a stretch to suggest that Mr K should have agreed with the course proposed by Ms K. I allow the claim for the filing of memoranda for case management conferences.

[15]              Fourthly, Ms K disputes that the respondent’s second submission incurred significant time or expense to prepare so that any costs sought in respect of the second submission are excessive and unwarranted. I have dealt with this at paragraph [13] above.

[16]              Finally, Ms K contends that, although self-represented at the time of hearing, she too has incurred legal costs in respect of advice prior to the hearing in the High Court, along with disbursements such as filing fees and hearing fees. She seeks return of the security for costs of $1,195 already paid into Court. I make two points in response. Had Ms K commenced her appeal within time, the disbursements such as hearing time for the leave application would not have been incurred. Secondly, the documents filed and therefore any filing fees incurred in any event covered both the appeal and application for leave to appeal. Mr K is not responsible for these costs. He was entitled to oppose leave to appeal and his opposition was not without merit.

[17]In summary I allow the following costs:

Filing of memoranda	$1912.00
Notice of opposition and affidavits	$1434.00
Preparation of submissions	$3585.00
Appearance at hearing	$597.50
Total costs on 2B basis	$7528.50

[18]              It follows that costs, properly calculated on a 2B basis, total $7,528.50. Accordingly, I make an award for costs in favour of Mr K for that sum.

[19]No disbursements are claimed.

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

Walker J