Lowe v Way

[2015] NZHC 2377

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, 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-2014-404-001668 [2015] NZHC 2377

UNDER	Care of Children Act 2004
IN THE MATTER	of an appeal under section 243(1) Care of Children Act and section 72, District Courts Act 1947
BETWEEN	LOWE Appellant
AND	WAY Respondent

Hearing:	On the papers
Judgment:	30 September 2015

COSTS JUDGMENT OF DUFFY J

This judgment was delivered by me on 30 September 2015 at 4.30 pm pursuant to

Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors:

Holmden Horrocks, Auckland

LOWE v WAY [2015] NZHC 2377 [30 September 2015]

[1]      On 25 June 2015 I issued a minute in which I found that the respondent was entitled to costs at category 2B, but I required the respondent to quantify those costs.

[2]      Unbeknown to me at the time the respondent filed a memorandum dated 26

June 2015 and annexed thereto a draft order as to costs on appeal and a schedule of costs on a 2B basis.  The appellant filed submissions dated 29 June 2015 contesting the award of costs.  Due to an oversight in this Court’s registry the memoranda of counsel were not brought to my attention until 8 September 2015.  I regret the delay this oversight has caused to the parties.

[3]      I am satisfied with the quantification of costs and accordingly I award the respondent costs in the sum of $15,124 and disbursements of $50.00, making a total of $15,174.00.

[4]      The appellant has filed argument as to why I should depart from the general rules that costs follow the event, and that for category 2B, being a standard award of costs for appeals of this nature, no further reasons are required for the award.  The arguments the appellant makes for a lesser or no award of costs to the respondent do not persuade me that I should depart from the general rules.

[5]      Costs are now being awarded in the Family Court.  The general principle that costs follow the event acts as an incentive to parties not to pursue weak or unmeritorious cases.  Whilst I found some errors in the Family Court’s judgment, I also found that those errors did not warrant interfering with the decision of the Family Court.  It was for that reason that I dismissed the appeal.

[6]      The  way  in  which  the  appellant  conducted  the  appeal,  including  her unsuccessful attempt to adduce fresh evidence on appeal, which was made inappropriately without the making of a proper application to do so beforehand, would, if anything, have warranted an uplift above scale costs.  Her conduct of the appeal unnecessarily prolonged the hearing, which in turn added cost for the respondent.

[7]      The respondent has chosen to confine himself to seeking no more than scale costs and I consider he is properly entitled to such an award.

[8]      Accordingly, I reject the arguments of the appellant.

Result

[9]      The respondent is awarded costs of $15,124 and disbursements of $50.00, making a total of costs and disbursements in the sum of $15,174.

[10]     The respondent has filed a draft order.  I am satisfied with the terms of the order and accordingly the registry can proceed to seal the order.