McConkey v Clarke
[2021] NZCA 334
•26 July 2021 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA474/2019 [2021] NZCA 334 |
| BETWEEN | GEMMA LYNETTE MCCONKEY |
| AND | JODY DAWN CLARKE |
| Counsel: | Appellant in Person |
Judgment: | 26 July 2021 at 10 am |
JUDGMENT OF COURTNEY J
The application for review of the Deputy Registrar’s decision is declined.
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REASONS
Introduction
In a decision delivered on 2 April 2020 this Court declined Gemma McConkey’s application for leave to bring a second appeal.[1] The underlying proceedings related to Ms McConkey’s claim for the division of relationship property following the death of Mr Clarke, with whom she claimed to have been in a de facto relationship. A costs order was made in favour of the respondents for a standard application on a band A basis with usual disbursements.
[1]McConkey v Clarke [2020] NZCA 83, [2020] NZFLR 207.
In June 2021 the respondents sought to seal the judgment. Ms McConkey did not agree to the judgment being sealed and gave a number of reasons for her objection. A Deputy Registrar considered that the matters she raised were not relevant to the decision to seal the judgment. The Deputy Registrar advised that she would seal the judgment, subject to Ms McConkey’s right to seek a review of her decision to do so.
Ms McConkey applied for a review of the Deputy Registrar’s decision.[2] That application has been referred to me.
[2]Court of Appeal (Civil) Rules 2005, r 5A(3).
At a late stage Ms McConkey provided the Registry with a judgment delivered in proceedings brought by the administrator of the estate of Ms McConkey’s former lawyer to recover legal fees. The judgment required Ms McConkey to provide security for costs in respect of her counterclaim.[3] Also provided was Ms McConkey’s affidavit in opposition to the application for security for costs. I have reviewed those documents but they do not assist in the determination of the current review of the Deputy Registrar’s decision.
Background
[3]Takarangi v McConkey [2021] NZHC 1813.
The judgment for sealing was received on 14 June 2021. The Deputy Registrar emailed a copy of the judgment for sealing to Ms McConkey inviting any comments by 18 June 2021 and indicating that the judgment would be sealed after that date.
Ms McConkey responded. She did not accept the claim for costs on submissions/memoranda that she had filed. She wished to have her lawyer respond and provided the Court with his email address. Ms McConkey’s lawyer, Mr Josephson, did not contact the Court. Instead, on 18 June 2021 Ms McConkey emailed, advising that she did not agree to the judgment being sealed “due to urgent matters my lawyer will be trying to deal with in the High Court in Palmerston North date of 18-6-2021”. She went on to explain that, although she could not discuss what those matters were, they concerned the distribution of Mr Clarke’s estate.
On 18 June 2021 the Deputy Registrar replied, copying the email to the respondents’ lawyer. She advised that the issues raised in Ms McConkey’s email were not relevant to the sealing of the judgment but granted an extension of time to 21 June 2021 for any further comments Ms McConkey might wish to make.
Ms McConkey responded on 21 June 2021. The major concerns she expressed can be summarised as follows. First, that the costs related to matters that were still before the High Court. Secondly, the respondents’ lawyer should have been asked to provide calculations as to the costs being sought and if that had happened she would have had a right of appeal against the costs decision. She was particularly concerned about the costs being claimed for the preparation of a memorandum in opposition which she did not believe was allocated by the Judge and is already covered under the band A costs (as per the calculation in r 14.5 of the High Court Rules 2016). Thirdly, over a year had elapsed between the decision declining her application and the respondents’ attempt to seal the judgment.
The Deputy Registrar responded to Ms McConkey’s email by advising that the issues raised were not relevant to the sealing of the decision and that she intended to proceed to seal the judgment. This is the decision under review.
Review
Ms McConkey’s grounds for review are as follows. First, she disputes the amount of time for the preparation for a hearing and for the memorandum in opposition on the basis that the latter should form part of the former and, in any event, $2,390 is excessive for “one unit of time”. Secondly, r 53A(b)–(g) of the Court of Appeal (Civil) Rules 2005 (the Rules) were not taken into account in imposing the costs award. I deal with these together.
The issue of costs was raised in the respondents’ submissions in opposition. They made it clear that costs were being sought in the event of the application being declined. Ms McConkey responded to that issue in her submissions in reply. The Court was entitled to deal with the issue of costs at the time of making the decision to decline the application without inviting further submissions on the issue.
There was no need to invite calculations from the respondents as to the costs being claimed because costs are calculated by reference to the Rules. Costs on an unsuccessful application for leave to appeal are determined on the basis of r 53A(1)(a) of the Rules, which provides that the party who fails will pay costs to the party who succeeds.[4]
[4]Court of Appeal (Civil) Rules, r 53G(1).
The costs are assessed by applying the appropriate daily recovery rate to the time considered reasonable for each step reasonably required in relation to the application for leave to appeal.[5] The appropriate daily recovery rate is that set out in sch 2 of the High Court Rules.[6] The reasonable time for any given step is that set out in sch 2 of the Rules.[7] The time permitted for any given step is calculated on the basis of parts of a day. Relevantly, the permitted steps include preparation of the memorandum of opposition (step 3), for which 0.4 of a day is allowed, and preparation for the hearing of a defended application (step 4), for which one day is allowed.[8]
[5]Rule 53G(5A).
[6]Rule 53C.
[7]Rule 53G(5B).
[8]Schedule 2.
In this case the following steps were taken by the parties:
(a)Ms McConkey’s notice of application for leave to appeal was filed on 13 September 2019.
(b)The respondents’ notice in opposition was filed on 27 September 2019.
(c)Ms McConkey’s notice opposing the respondents’ request to extend time under r 5A of the Rules to file an affidavit in opposition was filed on 30 September 2019.
(d)The respondents’ affidavit in opposition was filed on 1 October 2019.
(e)Submissions by Ms McConkey in support of the application for leave were filed on 16 October 2019.
(f)The respondents’ submissions were filed on 13 December 2019.
(g)Ms McConkey’s submissions in reply were filed on 18 December 2019.
The appropriate recovery rate is $2,390.[9] The respondents have claimed costs on the basis of 0.4 of a day for the preparation of the memorandum of opposition (step 3) and one day for the preparation for a hearing of the defended application (step 4). These total $3,346. These claims are within the permitted steps of sch 2. The reference to a “memorandum” in step 3 plainly takes in the document entitled “notice of opposition” that was filed in response to Ms McConkey’s application for leave to appeal. The time claimed for step 4 is as permitted; the “1.0” does not refer to “one unit of time” but, rather, to one day. The application was being defended and the hearing of the matter took place on the papers, as is usual for applications for leave to appeal. The preparation allowed for in step 4 plainly refers to the preparation required for the submissions that were filed and which the Court took into account in determining the application. There is therefore no basis on which to challenge the respondents’ calculation of costs.
[9]High Court Rules 2016, sch 2.
This brings me to Ms McConkey’s third area of concern. Rule 51(2A) of the Rules requires, wherever practicable, that the parties seeking to seal a judgment first consult the opposite party as to the form of the judgment and any order as to costs. There is nothing on the Court file to indicate that the respondents consulted with Ms McConkey as to the form of the judgments. I therefore proceed on the basis that r 51(2A) was not complied with. The question is whether that non‑compliance precludes sealing of the judgment now.
It is obvious that the purpose of r 51(2A) is to ensure that the opposing party has an opportunity to consider and object to any specific aspects of the form in which the judgment is proposed to be sealed. This can include, as here, concerns about the way the costs order was recorded and the costs calculated. However, the Deputy Registrar embarked on extensive correspondence with Ms McConkey to ensure that she had the opportunity to comment on the form of the judgment to be sealed and to raise any objections to the sealing of the order in the form proposed. Thus, the purpose of r 51(2A) has been satisfied albeit not in the manner contemplated by the rule. There is, therefore, no prejudice to Ms McConkey and the non-compliance by the respondents does not provide a basis for the Deputy Registrar to refuse to seal the judgment.
I find that there was no error by the Deputy Registrar.
Result
The application for review of the Deputy Registrar’s decision is declined.
Solicitors:
McIntosh & Signal, Feilding for Respondents
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