McNamara v Beasley

[2018] NZHC 11

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,

PLEASE SEE https:// judgments.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-001670

[2018] NZHC 11

BETWEEN

JOY MCNAMARA

Applicant/appellant

AND

JASON JARROD BEASLEY

Respondent

Hearing:

[On the papers]

Appearances:

C A O’Donnell for Appellant Respondent in person

R J Collis, Lawyer for Child

Judgment:

22 January 2018

COSTS JUDGMENT OF JAGOSE J

This judgment was delivered by me on 22 January 2018 at 4.00 pm Pursuant to Rule 11.5 High Court Rules.

Registrar / Deputy Registrar

MCNAMARA v BEASLEY [2018] NZHC 11 [22 January 2018]

[1]    My 7 December 2017 judgment on this appeal, in Ms McNamara’s favour, took the preliminary view Ms McNamara should be entitled to 2B costs for all steps on the appeal. If that was not accepted, I reserved costs for determination on short memoranda.

[2]    By memorandum of 20 December 2017, Ms McNamara now seeks 2B costs in the amount of $12,822.50. By memorandum of the same day, Mr Beasley, now unrepresented, opposes the award of costs to Ms McNamara. His reasons – variously, “this case was not won by either party as no final judgment was made”; he also incurred legal expenses on the appeal and “feel[s] that the cost should lay where they fall”; and he would be willing to equalise each party’s legal expenses on the appeal – fail to comprehend the principles underpinning costs awards.

[3]    Those principles include “the party who fails with respect to a proceeding… should pay costs to the party who succeeds”,1 in accordance with scale,2 in an amount no greater than was incurred by the successful party3 – to the end “so far as possible the determination of costs should be predictable and expeditious”.4

[4]    Ms McNamara was successful on her appeal. She overturned an adverse Family Court judgment of significance to the parties’ relationship. In my preliminary view, I considered the appeal required counsel of average skill and experience,5 and the claimed steps each required a normal amount of time for their performance.6

[5]    Nothing raised by Mr Beasley now brings me to a different view. He failed to uphold the Family Court judgment (made in his favour, although without his active participation). Costs principles are not about equalising parties’ expenses, but to have the failing party compensate the successful party. Mr Beasley could have, but did not, abide this Court’s decision on the appeal – thereby avoiding both the legal expense and (possibly) the costs liability of which he complains. And Ms McNamara’s counsel,

1      HCR 14.2(a).

2      HCR 14.2(b)-(e).

3      HCR 14.2(f).

4      HCR 14.2(g).

5      HCR 14.3(1).

6      HCR 14.5(2)(b).

an officer of this Court, confirms Ms McNamara paid fees on the appeal exceeding the sum of costs sought.

[6]    The predictable and expeditious determination of costs on this appeal anticipates compliance with 2B scale, on Schedule 3’s steps 52-58 (as applicable). Ms McNamara’s claim is consistent with that scale, and conservative in her application of case management steps and calculation of overall time.

[7]    I order Mr Beasley to pay Ms McNamara 2B costs on her appeal in the amount of $12,822.50, plus any actual and reasonable disbursements certified by the Registrar.

Jagose J