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…

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 Lavery v Lavery

Details

AGLC: Lavery v Lavery [2019] NZHC 502
Case: [2019] NZHC 502
Decision Date: 20 March 2019

CaseChat Overview and Summary

The case of Lavery v Lavery involves an appeal by Michael David Lavery against a Family Court Order. The appeal was heard in the High Court of New Zealand, Wellington Registry. The dispute centered on a claim for disbursements incurred by Mr Lavery during the appeal proceedings. Mrs Lavery opposed the claim, arguing that the expenses were not related to the High Court proceedings and that there was no verification of the claimed costs. The primary legal issue before the court was whether the claimed disbursements were eligible for reimbursement under the High Court Rules. The High Court Rules 2016 provide that disbursements must be specific to the conduct of the proceeding, reasonably necessary for the conduct of the proceeding, and reasonable in amount. The court found that Mr Lavery was not entitled to reimbursement for his personal time, as litigants in person are not eligible for such costs. Regarding the legal advice, the court accepted that the advice was directly incurred for the purposes of the appeal proceeding and was reasonably necessary. The court also found that Mr Lavery was entitled to the scheduling fee, photocopying, stationery, and postage costs, albeit without receipts. Parking costs were deemed disproportionate, and only ten trips were awarded. Ultimately, the court awarded $1,310 in disbursements to Mr Lavery.

Orders