Little v Little

[2020] NZHC 3130

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-935

[2020] NZHC 3130

IN THE MATTER

of an appeal under s 174 of the Family Proceedings Act 1980, s 124 the District Courts Act 2016 and Part 20 the High Court Rules 2016

BETWEEN

PETER FRANCIS JOSEPH LITTLE

Appellant

AND

DEBRAH LEANNE LITTLE

First respondent

PETER FRANCIS JOSEPH LITTLE and LOCKHART LEGAL TRUSTEE

SERVICES NO. 32 LIMITED as trustees of the MARBLE ARCH TRUST

Second respondent

Hearing:	On the papers
Appearances:	R C Knight and L A Moyle for the appellant M K Headifen for the respondents
Judgment:	26 November 2020

JUDGMENT OF JAGOSE J

[Costs]

This judgment was delivered by me on 26 November 2020 at 2.00pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Counsel:

R C Knight, Barrister, Auckland

M K Headifen, Barrister, Auckland

LITTLE v LITTLE [2020] NZHC 3130 [26 November 2020]

[1]                  My 6 October 2020 judgment – upholding the appeal, setting aside the Family Court Judge’s order, and directing the Judge to exercise his discretion under s 182 of the Family Proceedings Act 1980 in accordance with specified considerations – reserved costs, but observed:1

As the successful party, Mr Little presumptively is entitled to have his costs paid by Mrs Little. However, given my direction for the matter to return to the Family Court for its determination, my preliminary view is costs should lie where they fell: that is, be borne by the party incurring them.

[2]Mr Little claims 2B costs in the amount of $17,925, plus disbursements of

$1,835. Pointing out Mr Little failed on his former two grounds of appeal, Mrs Little proposes costs lie where they fell; alternatively, she should be awarded two-thirds the claimed costs, and Mr Little only one-third. Practically speaking, that is to claim a net payment of nearly $6,000 to Mrs Little.

[3]                  The latter outcome would be to disregard the first general principle applying to determination of costs, that “the party who fails with respect to a proceeding … should pay costs to the party who succeeds”.2 Irrespective of how they got there, only Mr Little was successful, and Mrs Little unsuccessful, on the appeal. Mrs Little was not prosecuting any separate cross-appeal on which she may be thought to have succeeded by setting aside the Judge’s order for reference back to the Judge.

[4]                  Critically, “so far as possible the determination of costs should be predictable and expeditious”.3 In other words, it should have been obvious to the parties what costs award was likely to accompany loss. The reason for my preliminary view only justifies refusing costs if that is accepted by the parties, despite predictability and expedition.4 Otherwise refusal is at least as inflammatory as may be the known costs exposure’s pursuit. But an award then is the principled result.

[5]                  I order Mrs Little pay Mr Little costs in the amount of $17,925, plus disbursements of $1,835.

—Jagose J

1      Little v Little [2020] NZHC 2612 at [33] (citation omitted).

2      High Court Rules 2016, r 14.2(1)(a) (emphasis added).

3      Rule 14.2(1)(g).

4      Rule 14.7(g).