Morton v Debono

[2021] NZHC 1795

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2021-412-11

[2021] NZHC 1795

BETWEEN

JOHN GEORGE GODFREY MORTON

Appellant

AND

LISA ANNE DEBONO, KRISTA CARMEL DEBONO and DANIEL JONN DEBONO

First Respondents

AND

JULIE ELISABETH GODFREY MORTON

Second Respondent

AND

The Executors in the Estate of RONA VIOLET MORTON (deceased)

Party Reserving Rights

Hearing:

(Determined on the papers)

Counsel:

J C D Guest for Appellant

D R Tobin for First Respondents
T D Gudmanz for Second Respondent

Judgment:

15 July 2021

JUDGMENT OF ASSOCIATE JUDGE LESTER

(Costs)

This judgment was delivered by me on 15 July 2021 at 4.00 pm Pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 15 July 2021

MORTON v DEBONO [2021] NZHC 1795 [15 July 2021]

[1]    On 30 June 2021, I released a judgment declining the appellant’s request that this appeal be consolidated with proceedings under the Family Protection Act 1955 also in this Court, or, in the alternative, that the two proceedings either be heard together or one after the other.1 In the judgment I said I did not see any reason why costs should not follow the event on a 2B basis and if submissions were not made within five working days of the date of the judgment then the order would be that the respondents were entitled to costs on a 2B basis.

[2]    Mr Guest, counsel for the appellant/applicant for consolidation, has filed costs submissions raising two principal points:

(a)firstly, that costs on a 2B basis would be excessive; and

(b)secondly, that an award on that basis in respect of each of the respondents would produce an unfair result.

Are 2B costs appropriate?

[3]    Mr Guest submits that the issue for determination was a narrow one to be determined under a single rule. He submits the time allowance proposed by the respondents of .6 of a day for preparing a notice of opposition is excessive in terms of understanding the application and the allowance of 1.5 days is excessive for written submissions in the circumstances. Mr Guest submits those: “two items together provide for over two days of legal work (excluding the hearing itself) to be expended on this simple interlocutory application”.

[4]    Mr Guest suggests a more realistic approach would be an award of  costs on  a 2A basis.

1      Morton v Debono [2021] NZHC 1582.

[5]    Mr Guest then submits all respondents had the same interests in respect of the consolidation   point   so   they   did   not   require   separate    representation    for the consolidation application.

[6]    In effect, the submission is that, while the first and second respondents have different interests in respect of the Family Protection Act claim and the issues that arose in the Family Court (which are the subject to the appeal), the respondents’ interests were the same as to the issue of consolidation.

[7]    Finally, Mr Guest refers to the rule that costs must not exceed actual costs incurred.

[8]    In summary, Mr Guest submits that a single award of costs on a 2A basis to be shared between the two respondents would be a fair result.

[9]    Mr Tobin, counsel for the first respondents, notes in his costs submissions that counsel agreed at the commencement of the appeal that this proceeding be categorised as  a 2B  proceeding.  He says  Mr Guest  did  not  refer to  any of  the grounds  for   a reduction of costs set out in the High Court Rules 2016, and that the application was not one that might be considered straightforward and capable of being conducted by junior counsel. In that regard I note the experience of Mr Guest.

[10]   Ultimately I accept Mr Guest’s submission that in respect of the focused issue of consolidation there was no need for the separate representation of the second respondent. Put simply, all respondents resisted consolidation and there was no conflict between their submissions in opposition. That being the case, the opposition could have been presented by one counsel. However, I accept Mr Tobin’s submissions that the application for consolidation could not be considered straightforward and capable of being conducted by junior counsel. Accordingly, a 2B calculation is appropriate. Mr Tobin’s costs calculation as set out at para [16] of his memorandum is accepted.

[11]   Accordingly, there is an order that the appellant is to pay to the first and second respondents a total of $8,604 for costs – that is, one award of 2B costs in respect of their successful opposition to the application.

Associate Judge Lester

Solicitors:

Downie Stewart, Dunedin (for Appellant)

Marks & Worth, Dunedin (for First Respondents)
Copy to counsel: D R Tobin, Barrister, Dunedin

Home Transfer Centre, Dunedin (for Second Respondent)
Copy to counsel: T D Gudmanz, Barrister, Dunedin