Owen v Thomas - [2014] NZHC 3322

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 Respondent

Judgment:

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]…

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 [2014] NZHC 3322
Case: [2014] NZHC 3322
Decision Date: 18 December 2014

CaseChat Overview and Summary

In Owen v Thomas, the appellant, Owen, successfully appealed against interim distribution and maintenance orders made by the Family Court. Owen sought costs related to the appeal and the application for a stay of execution of the orders, amounting to $20,907, including $1,803 for disbursements. The appellant argued that the proceedings should be classified as category 2B and that, given the successful appeal, costs should follow the event in accordance with rule 14.2(a) of the High Court Rules. The respondent opposed the costs, suggesting that the issue be deferred until the Family Court resolved the substantive spousal maintenance and final distribution of relationship property. Owen countered that the appeal related to interlocutory matters, and therefore rule 14.8 applied, mandating that costs on interlocutory applications be fixed when the application is determined unless there are special reasons to the contrary.

The court noted that 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. The court rejected the respondent's argument to defer costs until the Family Court delivered a decision on the substantive maintenance application, finding that the appellant was successful in his challenge against the Family Court's decisions to award interim maintenance and an interim distribution of relationship property. The court concluded that the appellant was entitled to the costs he sought and awarded him 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, plus the disbursements set out in the said schedule. The total sum awarded was $20,907.

Orders