Palmer v Doyle

[2024] NZHC 476

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2022-419-119

[2024] NZHC 476

IN THE MATTER OF

an appeal pursuant to the Family Violence Act 2018

BETWEEN

ROBERT PALMER

Appellant

AND

SUSAN DOYLE

Respondent

Hearing:	On the papers
Counsel:	S Mitchell KC and S Recordon for the Appellant J Niemand for the Respondent
Judgment:	7 March 2024

JUDGMENT OF HARVEY J

[Costs]

This judgment was delivered by me on 7 March 2024 at 4pm pursuant to

Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors/Counsel:

S Mitchell KC, Barrister, Auckland Niemand Peebles Hoult, Hamilton Glaister Ennor, Auckland

PALMER v DOYLE [2024] NZHC 476 [7 March 2024]

[1]    On 21 December 2023, the appellant’s appeal against a decision of the Family Court was dismissed.1 Counsel were directed to submit costs memoranda, failing agreement.

[2]    Mr Niemand filed a memorandum dated 19 February 2024 seeking costs and confirming that the appellant had passed away. Counsel noted that this complicates matters so far as reaching an agreement on costs and seeks an order from the Court so as to conclude the matter. Counsel for the late appellant has unsurprisingly not filed a memorandum on costs.

[3]    I agree that the claim for costs is unremarkable. The respondent claims 2B costs in the amount of $9,440.50 on the basis that costs follow the event.2

[4]    In McKinnon v Macduff, this Court considered that where a party to a proceeding passes away, it is reasonable for their estate to be liable for costs up until the party’s death.3 I see no reason why this general principle should not be applied here. The appellant pursued litigation against the respondent with the knowledge that a costs award may eventuate if he was unsuccessful. Furthermore, the respondent’s claim is not excessive.

[5]The estate of the appellant is ordered to pay $9,440.50 costs to the respondent.

Harvey J

1      Palmer v Doyle [2023] NZHC 3876.

2      High Court Rules 2016, r 14.2(a).

3      McKinnon v MacDuff (as Executrix in the Estate of Peter Leys Chignell) HC CHCH CIV-2006- 409-003030 [4 July 2007], at [19]. See also Lewis v Cotton [2001] 2 NZLR 21 (CA) at [63]–[72] where indemnity costs were ordered to be paid out of the estate of the late appellant.