Le Noel v Le Noel

[2017] NZHC 812

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980.

FOR FURTHER INFORMATION, PLEASE SEE THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING- JUDGMENTS.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2017-404-182 [2017] NZHC 812

BETWEEN

PAULA JANINE LE NOEL

Applicant

AND

ALAN BRIAN LE NOEL First Respondent

AND

MICHAEL PAUL ATKINSON, MATTHEW GRAEME BELLINGHAM AND AARON JAMES WALLACE AS DIRECTORS AND SHAREHOLDERS OF LE NOEL TRUSTEES LIMITED Second Defendants

Hearing:	On the Papers
Counsel:	D A T Chambers QC for the Applicant K G Davenport QC and R Butler for Respondent
Judgment:	28 April 2017

JUDGMENT No 2 OF PALMER J (COSTS)

This judgment is delivered by me on 28 April 2017 at 11.00 am pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Counsel & Solicitors:

D A T Chambers QC, Auckland

K G Davenport QC, Auckland

R D Butler, Barrister, Auckland
Auckland Property Legal Service, Auckland

Sellars & Co, Helensville

LE NOEL v LE NOEL – Costs [2017] NZHC 812 [28 April 2017]

[1]      In my judgment of 15 February 2017, granting interim orders, I awarded costs to the applicant but stated “if the parties cannot agree on quantum they have leave to file brief written submissions within 20 working days of the date of this judgment”.1  That deadline expired on 15 March 2017.

Submissions

[2]      On 17 March 2017 counsel for Ms Le Noel filed a memorandum explaining the settlement anticipated in the interim orders had not occurred until 16 March 2017 because the respondents were in dispute with ASB Bank and settlement could not occur  until  that  dispute  was  resolved.     Ms  Le  Noel  sought  leave  to  file  a memorandum on costs within 10 working days if agreement was not reached.

[3]      On 31 March 2017 Ms Chambers QC, counsel for the applicant Ms Le Noel, filed submissions seeking increased costs of 100 per cent under r 14.6 of the High Court Rules 2016 on the grounds:

(a)      The respondents failed, without reasonable justification, to accept an interim offer which would have avoided the applicant incurring the cost of the proceeding. The applicant had offered, on 31 January 2017, a solution more beneficial to the respondents than the interim orders eventually obtained.

(b)The respondents pursued arguments that lacked merit.  They behaved unreasonably and attempted to use the situation as unfair leverage. The respondents’ opposition to the interim orders was part of a continuing campaign to delay settling the s 21A Agreement for the benefit of the first respondent.

[4]      Ms Davenport QC, counsel for Mr Le Noel, accepts he is liable for scale costs of $5,240.50, but:

(a)       objects to costs being awarded:

1      Le Noel v Le Noel [2017] NZHC 159 at [32](e).

(i)at  this  stage,  for  commencement  of  proceedings  since  the substantive proceedings have not been determined;

(ii)      for half a day, rather than the quarter day the hearing took; (iii)          second counsel, as unnecessary;

(iv)     a bundle of documents, because it wasn’t filed; and

(b)      objects to increased costs being awarded because the respondents’

written submissions made clear they consented to interim orders.

Decision

[5]      I  would  have  entertained  an  application  for  indemnity  costs  but  for  the applicant, to some extent, putting herself in this position by precipitately agreeing to sell the property at issue before she legally owned it.2

[6]      As it is, I consider it appropriate to award increased costs here.  As I said in the judgment for interim orders, the first respondent’s behaviour was “opportunistic and ill-judged”.3   The application should not have been opposed.   By the time of the hearing,   the   respondents   consented   to   orders   directing   them   to   sign   the documentation necessary to effect the property transfer.  They should have done so earlier.  The respondents contributed unnecessarily to the time and expense of this step  in  the  proceeding  and  satisfied  the  threshold  for  increased  costs  under  r

14.6(3)(b)(ii) and (v) and possibly (iii).   I take into account the principles of the Property (Relationships) Act  1976,  particularly in  s  1N(d),  that  questions  about relationship property “should be resolved as inexpensively, simply, and speedily as is consistent with justice”.

[7]      However, Ms Davenport’s objections to specific aspects of costs sought, in paragraph [4](a) above, are valid, for the reasons she gives (though I expect the costs

2 At [27].

3 At [21].

for commencement of the proceedings will need to be paid at some point, unless these proceedings take on further life).

[8]      The  Court  of Appeal  has  held  that,  where  the  High  Court  considers  an increase is justified, the normal response should be to provide an uplift to what would be a reasonable fee but an uplift of more than 50 per cent would not generally be appropriate.4    I see no reason to depart from that.

[9]      I award costs to the applicant on a 2B basis for 2.35 days (steps 22, 24 and 26 for one quarter day) totalling $5,240.50, uplifted by 50 per cent, totalling $7,860.75.

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

Palmer J

4      Holdfast NZ Ltd v Selleys Pty Ltd (2005) 17 PRNZ 897 (CA) at [48].