Owen v Thomas
[2014] NZHC 3322
•18 December 2014
NOTE: PURSUANT TO S 169 OF THE FAMILY PROCEEDINGS ACT 1980, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS11B TO
11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.
NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDINGS MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CIV-2014-419-000267 [2014] NZHC 3322
UNDER the Family Proceedings Act 1980 and the
Property (Relationships) Act 1976
IN THE MATTER OF
an appeal under s 174(1AA)(a)
Family Proceedings Act 1980 and s 19, Property Relationships Act 1976
BETWEEN
OWEN Applicant
AND
THOMAS Respondent
Hearing: 18 December 2014 [On the Papers] Counsel:
S R Jefferson QC and J I Hawker for the Applicant
V A Crawshaw for the RespondentJudgment:
18 December 2014
JUDGMENT OF DUFFY J [re Costs]
This judgment was delivered by Justice Duffy on 18 December 2014 at 4.00 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
OWEN v THOMAS [2014] NZHC 3322 [18 December 2014]
[1] The appellant was successful in his appeal against an interim distribution order and an interim maintenance order made by the Family Court: see Owen v Thomas [2014] NZHC 2200.
[2] The appellant now seeks costs in relation to the appeal and the application for stay of execution of the orders to the sum of $20,907, which includes $1,803 for disbursements.
[3] The appellant submits that counsel were agreed that the proceeding should be classified as category 2B and that since the appeal was successful in all regards, costs should follow the event in accordance with r 14.2(a) of the High Court Rules.
[4] The appellant claims costs in relation to the preparation of the stay application and the attendance of counsel on 22 August 2014. The appellant says that due to matters beyond his control, the application for stay was not heard by Fogarty J on that date. The appellant submits that despite the proximity of the stay hearing to the substantive appeal on 3 September 2014, the respondent did not at any time consent to a stay.
[5] Counsel for the appellant anticipates that the respondent might say that she is unable to pay any costs order until the relationship property matters are resolved. Although this is not the appellant’s preference, the appellant accepts this course of action, if the Court considers it appropriate.
[6] The respondent submits that a fixture was allocated in the Family Court for
13 October 2014 to determine substantive spousal maintenance and that this matter has only been part-heard. The respondent considers it more appropriate to deal with the question of costs in the High Court after a substantive decision from the Family Court is reached. The respondent says that it will only be at that point that the parties will know whether the appellant has succeeded on a substantive basis.
[7] The appellant replies to the respondent’s memorandum and submits that the fact that the substantive spousal maintenance proceeding is unresolved is not relevant to the consideration of costs on the High Court appeal. The appellant submits that as the appeal was in relation to interim orders made by the
Family Court, the appeal could be considered an interlocutory matter and, therefore, r 14.8 applies. That rule provides that costs on an interlocutory application must be fixed when the application is determined unless there are special reasons to the contrary.
Discussion
[8] The appellant cites the Court of Appeal decision in Chapman v Badon Ltd
[2010] NZCA 613, (2010) 20 PRNZ 83 where Arnold J said at [12]:
Apart from applications for summary judgment, the general approach to costs in respect of interlocutory applications is that they are dealt with at the time the applications are determined rather than being held over until the outcome of the proceedings is known. This reflects the fact that the merits of particular applications and the merits of the substantive proceedings are different matters.
[9] These comments were made in relation to an unsuccessful strike-out application and reflects r 14.8, which provides:
14.8 Costs on interlocutory applications
(1) Costs on an opposed interlocutory application, unless there are special reasons to the contrary,—
(a) must be fixed in accordance with these rules when the application is determined; and
(b) become payable when they are fixed.
(2) Despite subclause (1), the court may reverse, discharge, or vary an order for costs on an interlocutory application if satisfied subsequently that the original order should not have been made.
(3) This rule does not apply to an application for summary judgment.
[10] In Collins v Collins [2014] NZHC 2121, Moore J allowed an appeal against an interim spousal maintenance order and quashed the order. At [46], Moore J simply noted that:
The appellant is entitled to an award of costs on the present appeal and I set that on a 2B basis with disbursements as fixed by the Registrar.
[11] In RMA v JB [2013] NZHC 2984, [2014] NZFLR 169, Brewer J dismissed an appeal against an interim maintenance order and considered that the Family Court
Judge did not err. In relation to costs, Brewer J did not deviate from the usual rule that costs follow the event. At [43], he ordered that the respondent was entitled to costs on a 2B basis.
[12] There is the other issue of whether the appellant should be able to claim costs for the stay application. Following the appeal hearing, there was no need to consider the stay application, as judgment on the appeal was delivered shortly after the hearing: see Owen v Thomas [2014] NZHC 2200 at [3].
[13] Nonetheless, the appellant was not to know at the time he brought the stay application and argued the appeal hearing that a prompt decision would be issued on the appeal.
[14] The stance taken by the respondent in the lead-up to the hearing of the appeal left the appellant with no alternative but to apply for a stay. The appellant is not responsible for the stay application not being heard on 22 August 2014 by Fogarty J. In the circumstances, I consider that the appellant is entitled to seek costs for the steps that he took to pursue the stay application. Those steps are outlined in the appellant’s schedule of costs.
[15] The respondent argues that the costs for the High Court appeal and stay application should be deferred until the Family Court delivers a decision on the respondent’s substantive maintenance application. I reject that argument. The appellant was successful in his challenge against the Family Court’s decisions to award interim maintenance and an interim distribution of relationship property. This Court found the Family Court to have erred. The appellant was entitled to challenge the erroneous decisions of the Family Court. What the Family Court may later decide in relation to permanent maintenance and final distribution of relationship property are discrete legal decisions that have no impact on the decisions that were the subject of this appeal.
[16] The general principle under r 14.2(a) of the High Court Rules is that costs follow the event. The appellant was successful. I can see no reason why the general principle should not be applied here. Nothing that the respondent has said would
persuade me to depart from the general principle. It follows that the appellant is entitled to the costs that he seeks.
[17] I am satisfied that the disbursements that the appellant seeks are reasonable and that he is entitled to recover them.
Result
[18] The appellant is awarded scale 2B costs for the appeal and the stay application as per the schedule of costs attached to the appellant’s memorandum dated 9 October 2014. The appellant is also entitled to the disbursements set out in the said schedule. The total sum is $20,907.
Duffy J
Counsel: S R Jefferson QC, Auckland
V A Crawshaw, Auckland
Solicitors: Wynyard Wood, Auckland
Beattie Rickman Legal, Hamilton
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