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Martin v Marsh

Martin v Marsh

Case [2015] NZHC 416 10 March 2015

Civil Litigation & Procedure

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-4903 [2015] NZHC 416

IN THE MATTER
of an appeal under s 39(1)(b) of the

Property (Relationships) Act 1976

BETWEEN

GABRIELLE JOY MARTIN Appellant

AND

BRETT ANTHONY MARSH as administrator of the Estate of LEE CLIFFORD MARSH (Deceased) Respondent

Hearing: (On the papers)

Counsel:

B M Ward for Appellant
R C Knight for Respondent

Judgment:

10 March 2015

COSTS JUDGMENT OF BREWER J

This judgment was delivered by me on 10 March 2015 at 3:30 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors: Gellert Ivanson (Auckland) for Appellant
Sean Kelly Lawyers (Auckland) for Respondent

MARTIN v MARSH [2015] NZHC 416 [10 March 2015]

Introduction

[1] Ms Martin did not succeed in a proceeding heard by Judge FJ Eivers in the Family Court at Auckland.1 However, the Judge decided not to award costs against her but, rather, to let costs lie where they fell. Mr Marsh (as administrator of the estate of Mr Lee Marsh) appeals that decision. In his submission, Ms Martin should pay the costs of the estate in the Family Court litigation.

[2] There is also at issue between the parties the costs which should be awarded

in Ms Martin’s unsuccessful appeal to this Court.2

Issues

[3] There are, accordingly, two issues for me to decide:

(a) Was Judge Eivers’s decision not to award costs in the Family Court properly within her discretion?

(b) What costs, if any, should be awarded against Ms Martin in relation to

her unsuccessful appeal of Judge Eivers’s decision?

Was Judge Eivers’s decision not to award costs in the Family Court properly within her discretion?

[4] In deciding not to award costs, Judge Eivers made a decision in the exercise of her discretion. The Supreme Court has confirmed that an appellate Court should not interfere with a costs decision unless satisfied that the Judge acted on a wrong principle, failed to take into account a relevant matter, took account of some irrelevant matter or was plainly wrong.3

[5] Judge Eivers, having identified that costs are at the discretion of the Court and having set out the principles applicable to the determination of costs under the
District Court Rules, declined to order costs for the following reasons:

1      GJM v BM [2013] NZFC 3316.
2      Martin v Marsh [2014] NZHC 2354.
3      Shirley v Wairarapa District Health Board [2006] 3 NZLR 523 (SC) at [15].

(a) Although the legal issues were not complex, the factual matrix of the case was unusual: the parties had once been married and had then resumed a relationship which was not a conventional one;

(b)Some of Ms Martin’s evidence may have been unhelpful, irrelevant or hearsay, but Mr Marsh did not challenge any of it before trial. This could have saved hearing time;

(c) Ms Martin did not contribute unnecessarily to the time and expense of the Court proceeding; and

(d)Ms Martin believed genuinely she had a de facto relationship with the late Mr Marsh. The…

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 Martin v Marsh

Details

AGLC: Martin v Marsh [2015] NZHC 416
Case: [2015] NZHC 416
Decision Date: 10 March 2015

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Martin v Marsh revolved around a dispute concerning costs in a family court matter, which was subsequently appealed. The appellant, Gabrielle Joy Martin, had previously lost a case in the Family Court against Brett Anthony Marsh, the administrator of the estate of Lee Clifford Marsh, who had passed away. The appeal was centred on the costs that should be borne by the parties, with Mr. Marsh contending that Ms. Martin should bear the costs from both the Family Court proceedings and her appeal to the High Court. The legal issues before the court were whether the Family Court judge’s decision not to award costs was within her discretion and, if not, what costs should be awarded against Ms. Martin for her unsuccessful appeal.

The court examined whether the Family Court judge's decision not to award costs was properly within her discretion. The court held that while the judge exercised her discretion, she failed to consider relevant principles and rules, particularly those relating to costs awards in the District Court Rules. The court found that the judge did not sufficiently address the principle that costs generally follow the event, nor did she consider the specific rules regarding when costs may be awarded or withheld. Furthermore, the court found that the judge did not appropriately consider a Calderbank offer, which did not warrant a costs penalty, and did not adequately address the fact that the estate should bear its own costs. The court concluded that the Family Court judge’s decision was plainly wrong as it did not align with the applicable principles and rules.

In relation to the costs for the unsuccessful appeal, the court determined that Ms. Martin should bear the costs of the appeal. The court calculated the costs based on the complexity and significance of the appeal proceedings, categorising them as 2B proceedings. The court awarded costs in the sum of $10,646.50 and additionally awarded $1,990 for the cross-appeal, as Mr. Marsh was successful in his cross-appeal. The court rejected any claim for indemnity costs or an uplift in costs, finding that Ms. Martin's case had merit and that Mr. Marsh was not entitled to such costs.

Ultimately, the court decided that the Family Court judge's decision not to award costs was not within her discretion and substituted it with an award of $24,102.50. Additionally, the court awarded costs against Ms. Martin for her unsuccessful appeal in the sum of $12,636.50. The court made orders accordingly, directing Ms. Martin to pay the specified costs to Mr. Marsh.

Orders