McBeth v Gray

[2017] NZHC 2653

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA

KIRIKIRIROA ROHE

CIV-2016-419-60 [2017] NZHC 2653

UNDER	s 143 of the Care of Children Act 2004
BETWEEN	NEVILLE JOHN MCBETH Appellant
AND	ANDREA MARION GRAY Respondent

Hearing:	On the papers
Appearances:	Appellant in person S Ambler for the Respondent
Judgment:	30 October 2017

JUDGMENT OF WOODHOUSE J (COSTS)

This judgment was delivered by me on 30 October 2017 at 3:00 p.m. pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

Parties / Solicitors: The Appellant

Ms S Ambler, Tompkins Wake, Solicitors, Hamilton

MCBETH v GRAY [2017] NZHC 2653 [30 October 2017]

[1]      Mr McBeth appealed against a ruling of Judge de Jong in a Family Court proceeding.  The appeal was struck out by order of this Court made on 30 August

2017.1   The respondent has sought costs in a sum of $3,568.  Mr McBeth challenges

the quantum.

[2]      The costs sought by the respondent were itemised as follows:

Costs – Category 2B ($2,230 daily rate)

Item	Description	Allocation	Total
11	Filing memorandum for first case management conference	0.4	892
13	Appearance at first case management conference	0.4	892
13	Appearance at subsequent case management conference	0.4	892
11	Filing memo (costs)	0.4	892
Total	$3,568

[3]      The main points made by Mr McBeth in opposition may be summarised as follows:

(a)       The respondent had, in an earlier memorandum, proposed costs on a lower scale.

(b)There were only two case management conferences of 15 minutes each.

(c)       No more than three hours is likely to have been spent by respondent’s

counsel which would not warrant costs of more than $900 plus GST.

(d)Arguments earlier advanced for the respondent had been rejected by the Court.

1      McBeth v Gray CIV-2016-419-60, minute of Brewer J of 30 August 2017.

[4]      I am satisfied that the costs sought by the respondent should be allowed, subject to reduction of the time allocation for the appearances from 0.4 to 0.3 of the daily rate.  That reduces the figure for those two claims from $892 to $669, with the total therefore being reduced to $3,122.  The reason for the adjustment is that the time allocations in Schedule 3 to the Rules for category 2 is 0.3 of the daily rate for the appearance at the first and subsequent case management conferences.

[5]      The respondent’s claim, with the minor adjustment, is in accordance with the general principles applying to applications for costs by the successful party.

[6]      The particular points made by Mr McBeth do not justify costs below scale. The scale on which the respondent’s claim is based is in fact the same as the scale originally proposed.  The respondent’s memorandum of 13 July 2017 proposed that costs  be  fixed  on  a  category  2  basis.    The  letter  “B”  refers  to  the  band  for determining a reasonable amount of time.  Band B is the band to be used if a normal amount  of  time  is  considered  reasonable:  r 14.5(2)(b).    I  consider  band  B  is appropriate in this case.

[7]      There is, in fact, some benefit to the appellant in relation to the claim made by the respondent.  Schedule 3 also makes provision for a claim under band B, at 0.4 of the daily rate, for preparation for the first case management conference, but there was no claim for that item.  I also expect that the preparation required for the second case management conference, which led to the appeal being struck out, would have justified an allowance of up to 0.4 of a day calculated against the daily rate of

$2,230.

[8]      Those observations address most of the points made by Mr McBeth in his memorandum. The remaining submission he made was as follows:

The appellant accepts that loosing [sic] the case meant facing costs however the case was not made any easier by the fact that the respondents [sic] counsel raised facts at an earlier Case Management Conference which the appellant proved wrong and the Judge has accepted this fact in His Honours [sic] directions.

[9]      Mr McBeth has misunderstood the observations of Brewer J in his minute recording the decision to strike the application out.  The Judge based his decision on

his conclusion that the appeal was moot because the original application filed by Mr McBeth  in  the  Family  Court,  in  respect  of  which  Judge  de  Jong  had  made  a direction, had subsequently been struck out (on 15 March 2016).  Brewer J did not make any ruling on the other arguments that had earlier been advanced for the respondent to the effect that the appeal was out of time and that there was no jurisdiction to appeal against a decision which simply directed Mr McBeth to bring his application on notice.  Brewer J’s decision does not justify a conclusion that the earlier arguments for the respondent were in some way unjustified.   They clearly were seriously arguable.

Result

[10]     The appellant is to pay the respondent’s costs in a sum of $3,122.

Woodhouse J