Lavery v Lavery

[2019] NZHC 502

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. FOR FURTHER INFORMATION, PLEASE SEE

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2018-485-693

[2019] NZHC 502

UNDER

the Property (Relationships) Act 1976

IN THE MATTER OF

an appeal against a Division of Relationship Property Order and Costs Order

BETWEEN

MICHAEL DAVID LAVERY

Appellant

AND

MARGARET PATRICIA LAVERY

Respondent

On the papers

Counsel:

Appellant in Person

F Ah Mu for Respondent

Judgment:

20 March 2019

JUDGMENT OF THOMAS J (DISBURSEMENTS)

[1]                  By my judgment dated 10 December 2018, Mr Lavery’s appeal against a Family Court Order made on 31 August 2018 was allowed and the orders varied.1 I noted, “Mr Lavery being self-represented, there is no issue as to costs”.

1      Lavery v Lavery [2018] NZHC 3235.

LAVERY v LAVERY [2019] NZHC 502 [20 March 2019]

[2]                  On 24 January 2019, Mr Lavery filed a memorandum raising several matters, including a claim for disbursements he had incurred in the appeal proceedings.

[3]                  By Minute of 5 March 2019, I invited any response in relation to the disbursement claim to be filed by 11 March 2019. Mrs Lavery opposes the items sought by Mr Lavery as disbursements on the basis they were not incurred in relation to the proceedings in the High Court and that he provided no verification of the claimed disbursements. She also notes that Mr Lavery’s position as a litigant in person has caused unnecessary disbursement costs, although no further details are provided.

[4]                  On 12 March, Mr Lavery asked for time to respond to the memorandum filed on behalf of Mrs Lavery. As an indulgence to him as a litigant in person, this was allowed.

Mr Lavery’s claim

[5]Mr Lavery claims disbursements in the following terms:

1	Legal Advice from Matt Freeman of Thomas Dewar Sziranyi Letts (Invoice attached).	$500.00
2	Scheduling Fee for 23 November 2018 Hearing (Invoice and Receipt attached).	$640.00
3	Valuation Report. Nathan Stokes Associates (prepared for the 13 September 2017 Hearing at the request of Judge Grace. All requests for the cost to be shared appear to have been ignored by Judge Doyle.) (receipt attached). I claim 50% of the $690.00 cost	$345.00
4	Personal trips from Wainuiomata to Courts for Delivery and witnessing of documents and Discussions with Registrars. 20 trips @ 2 hours return. $10 per hour.	$400.00
5	Parking: 20 Trips averaging $4.00 for meters	$80.00
6	10.00 a.m. 15 November 2018 appearance at High Court that had to be rescheduled because Ms Ah Mu/Mrs Lavery failed to appear!	$100.00
7	Photocopying	$50.00
8	Stationery and Postage	$80.00

9	My Personal time (uncalculatable hours)	$0.00
Subtotal	$2,195.00
10	Security Payment for legal fees. (I suspect this $740.00 is still in the court system somewhere and a Registrars assistant will probably be able to work out how to get it back to me without the aid of Ms Ah Mu.)	$740.00
TOTAL	$2,935.00

The High Court Rules

[6]The High Court Rules 2016 provide for an award of disbursements as follows:

14.12 Disbursements

(1)In this rule,—

disbursement, in relation to a proceeding,—

(a)means an expense paid or incurred for the purposes of the proceeding that would ordinarily be charged for separately from legal professional services in a solicitor’s bill of costs; and

(b)includes—

(i)fees of court for the proceeding:

(ii)expenses of serving documents for the purposes of the proceeding:

(iii)expenses of photocopying documents required by these rules or by a direction of the court:

(iv)expenses of conducting a conference by telephone or video link; but

(c)does not include counsel’s fee.

relevant issue, in relation to a disbursement, means the issue in respect of which the disbursement was paid or incurred.

(2)A disbursement must, if claimed and verified, be included in the costs awarded for a proceeding to the extent that it is—

(a)of a class that is either—

(i)approved by the court for the purposes of the proceeding; or

(ii)specified in paragraph (b) of subclause (1); and

(b)specific to the conduct of the proceeding; and

(c)reasonably necessary for the conduct of the proceeding; and

(d)reasonable in amount.

(3)Despite subclause (2), a disbursement may be disallowed or reduced if it is disproportionate in the circumstances of the proceeding.

…

[7]                  Disbursements claimed and verified must be awarded if approved by the Court for the proceeding or specified in r 14.12(1)(b), provided it is specific to the conduct of the proceeding and reasonably necessary for the conduct of the proceeding. Disbursements must be reasonable in amount and proportionate in the circumstances of the proceeding.2

Costs in respect of Mr Lavery

[8]                  Mr Lavery’s disbursements claim includes $500 in respect of his personal time for travelling to and from Court and an attendance which did not proceed.

[9]                  It is settled law that a litigant in person is not entitled to an award of costs other than for disbursements. This was reaffirmed by the Supreme Court as recently as November 2018.3

[10]Mr Lavery is, therefore, not entitled to an award in respect of his time.

Legal advice

[11]              Mr Lavery has produced an invoice from a Lower Hutt firm of lawyers, showing he was charged $500 including GST in respect of “relationship property appeal advice”.

2      High Court Rules 2016, rr 14.12(2) and 14.12(3).

3      McGuire v Secretary for Justice [2018] NZSC 116 at [55].

[12]              In Lysnar v National Bank of New Zealand Limited (No. 2) the Court of Appeal said:4

… the Court will provide to a successful layman litigant: an indemnity for this Court disbursements; a possible partial indemnity for any fees he pays by ways of professional assistance and nothing for his own time and trouble.

[13]              Examples of cases where a litigant in person has been awarded legal costs as a disbursement related to “attendances connected to the appeal”,5 and attendances relating to the filing of the proceedings and identifying the correct defendant for judicial review proceedings.6

[14]              To qualify as a disbursement, the expense must be paid or incurred for the purposes of the proceeding.

[15]In his memorandum of 24 January 2019, Mr Lavery said:

Altogether I talked with 9 lawyers and got a similar reaction each time.

I believed I was now no longer able to appeal other than aspects related to new evidence [sic].

[16]In his memorandum of 13 March 2019, Mr Lavery said:

The legal fees charged by Matt Freeman of Thomas Dewar Sziranyi Letts were related to discussion and advice I obtained from him about appealing the inheritance decisions. From the discussions I had with Mr Freeman, I worked out that the evidence I needed to prove the inherited funds were in my sole name e.t.c. [sic] could be obtained in a letter form from the Bonus Bonds Centre in Dunedin. Hence the 05 November Notice of amended grounds of Appeal based on the letter evidence I was able to obtain from the Bonus Bond [sic] Centre in Dunedin. …

[17]              A review of the file reveals a slightly different picture. The first communication from the Bonus Bonds Centre is dated 17 January 2018. The invoice for lawyers’ fees is dated 28 February 2018. It is headed “relationship property appeal advice” but does not specify the period covered by the invoice. Mr Lavery’s appeal was not filed until 12 September 2018. The second communication from the Bonus Bonds Centre is dated 5 November 2018, the same day as the amended grounds of

4      Lysnar v National Bank of New Zealand Limited (No. 2) [1935] NZLR 557 (CA) at 562.

5      Harrison v Keogh [2015] NZHC 3320 at [8].

6      Sandilands v New Zealand Law Society [2017] NZHC 2640 at [11].

appeal and leave to adduce new evidence. That communication refers to a telephone enquiry from Mr Lavery, the implication being that was made close in time to the date of the email. I therefore have some reservations about Mr Lavery’s version of events.

[18]              What is, however, clear is that the invoice relates to legal costs incurred by Mr Lavery in seeking legal advice about an appeal of the Family Court decision. To that extent, it was a cost incurred for the purpose of the proceeding, notwithstanding that it predated the proceeding. Mr Lavery’s grounds of appeal were, in fact, relatively constrained and it is fair to conclude that was a result of the advice he received. To that extent, it can be considered the legal advice was of benefit in narrowing the issues at appeal.

[19]              For these reasons, I am prepared to accept that the legal advice, the cost of which is set out in the invoice dated 28 February 2018, was directly incurred for the purposes of the appeal proceeding.

Valuation report

[20]              Mr Lavery’s claim includes half the cost of a valuation report prepared in connection with the Family Court hearing on 13 September 2017. That was a matter relevant to the Family Court hearing and the costs award in the Family Court.

[21]              Mr Lavery’s notice of appeal to this Court sought the following relief in relation to the costs award in the Family Court:

… Plus remove the occupier paid rates and insurance from the Costs Order.

[22]              The cost of the valuer’s report was not the subject of Mr Lavery’s appeal to this Court and cannot be dealt with in a costs decision on the appeal.

Court fees

[23]              Mr Lavery is entitled to the scheduling fee he claims. I note he also paid security for costs and that will be dealt with directly by the High Court.

Sundry items

[24]              Mr Lavery is entitled to claim for photocopying, stationery and postage, although receipts should have been provided to enable his claim to be verified. I accept that, as a litigant in person, Mr Lavery was unlikely to have known of the need to obtain receipts for these items at the time. The amount claimed for copying is reasonable and therefore awarded. The amount claimed for stationery and postage, while high, is also reasonable and awarded.

[25]              Mr Lavery claims parking at an average of $4.00 in respect of 20 trips from Wainuiomata to the Court. While there is no objection in principle to a claim for parking costs, 20 trips to the Court for filing of an appeal against a Family Court decision is disproportionate. Ten trips would be generous but in the circumstances is awarded.

Result

[26]For the reasons given, disbursements of $1,310.00 are awarded to Mr Lavery.

Thomas J

Solicitors:
Ah Kuoi Law, Wellington for Respondent