Owen v Thomas - [2015] NZHC 2966

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2014-419-267 [2015] NZHC 2966

UNDER
the Family Proceedings Act 1980 and

Property (Relationships) Act 1976

IN THE MATTER OF

an appeal under section 174(1AA)(a) Family Proceedings Act 1980 and section

39, Property Relationships Act 1976

BETWEEN

OWEN Applicant

AND

THOMAS Respondent

Hearing: 30 September 2015

Counsel:

R Gubb for applicant (respondent on appeal)
S R Jefferson QC for respondent (applicant on appeal)

Judgment:

30 September 2015

Reasons:

26 November 2015

REASONS JUDGMENT OF DUFFY J

This reasons for judgment was delivered by me on 26 November 2015 at 10 am pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar

Counsel: S R Jefferson QC, Auckland (simon.jefferson@trinitychambers.co.nz) V A Crawshaw, Auckland (vivienne@crawshaw.co.nz)

Solicitors: Wynyard Wood (R G Ewen), Auckland (rod@wynyardwood.co.nz) Beattie Rickman Legal (R B Gubb), Hamilton (rgubb@brlegal.co.nz)

OWEN v THOMAS [2015] NZHC 2966 [30 September 2015]

[1] On 30 September 2015 I delivered a result judgment in which I refused

Ms Thomas’s application for recall of the costs judgment that I delivered on

18 December 2014.1

[2] In the judgment on costs I awarded Mr Owen costs at category 2B for the appeal and the stay of execution application that Mr Owen brought. The result was costs and disbursements in the total sum of $20,907 were awarded to Mr Owen.

[3] Ms Thomas sought to have the costs judgment recalled. Her attempts at this had something of a protracted history. First, she filed a memorandum in which she requested the recall of the costs judgment. In a minute dated 22 December 2014 I directed Ms Thomas to file a formal application for recall of judgment. She then did so. Mr Owen opposed the recall application.

[4] In this Court on appeal Mr Owen successfully argued that decisions of the Family Court awarding Ms Thomas an interim maintenance order and an interim distribution of relationship property were wrong, and so the orders to that effect were set aside. He then sought costs.

[5] Ms Thomas’s primary argument in her memorandum of 17 October 2014 in opposition to an award of costs was that rather than for this Court to apply the well settled principle that costs follow the event, the Court should refrain from awarding costs until the Family Court had made determinations on Ms Thomas’s substantive applications for maintenance and the division of relationship property. Thus, Ms Thomas sought to persuade the Court that despite Mr Owen’s success in the appeal against the interim orders of the Family Court, any decision by that Court to award final orders should be allowed to influence whether he obtained an award of costs for succeeding in his appeal against the interim orders. The secondary argument was that if the Court was of a mind to award costs Ms Thomas wanted a
further opportunity to address that question.

1 Despite the length of time since the costs judgment was given, that judgment has not been sealed.

[6] On 22 October…

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 Owen v Thomas

Details

AGLC: Owen v Thomas [2015] NZHC 2966
Case: [2015] NZHC 2966
Decision Date: 30 September 2015

CaseChat Overview and Summary

In the case of Owen v Thomas, Thomas sought to recall a costs judgment made by Duffy J in the High Court of New Zealand, Hamilton Registry. The court was required to decide whether the costs judgment should be recalled based on the principles of recall of judgments, which are generally restrictive and limited to specific circumstances. Thomas argued that the court had not taken into account her memorandum dated 23 October 2014, and that she had not had a fair opportunity to be heard on the question of the appropriateness and quantum of a costs award. Owen opposed the recall application, arguing that Thomas had been given ample opportunity to address the question of costs and had chosen not to do so.

The court found that Thomas had been given a proper opportunity to be heard on the question of costs, and that her response to Owen's application for costs was a considered decision to propose the deferral of costs until some later time. The court found that there were no special reasons to recall the costs judgment, and that the strict test for recall of a judgment had not been met by Thomas. The court noted that the quantum of the costs award included an amount for appearance before another judge when a stay application was first heard, but that there was no need for a hearing as the parties had reached an accommodation. The court decided not to recall the costs judgment to that extent only, as it considered that Thomas had ample opportunity to address all issues regarding costs and failed to do so. The court did, however, decide to make an adjustment to the costs to be awarded on the recall application, taking into account that Owen had already received more in costs than he should have done under the scale. The recall application was ultimately refused, and the parties were directed to address the issue of costs in compliance with the directions given in the court's minute.

Orders