Pearce v Pearce

[2013] NZHC 636

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-997 [2013] NZHC 636

IN THE MATTER OF     the Estate of Frederick Arthur Pearce

BETWEEN  RONALD FREDERICK PEARCE Appellant

ANDMAXWELL ARTHUR PEARCE First Respondent

ANDBARRIE ARTHUR YOUNG Second Respondent

Hearing:         On the Papers

Counsel:         Appellant in Person

W K Willoughby for First Respondent

Judgment:      27 March 2013

JUDGMENT OF COOPER J ON COSTS

This judgment was delivered by Justice Cooper on

27 March 2013 at 2.30 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Hesketh Henry, Private Bag 92093, Auckland  [email protected]

Copy to:

R F Pearce, 1/23 Galvan Avenue, Pakuranga, Auckland 2010

PEARCE V PEARCE HC AK CIV-2012-404-997 [27 March 2013]

[1]      The appellant,  Mr Ronald  Frederick  Pearce  appealed  against  a judgment delivered by Judge I A McHardy in the Family Court at Auckland on 7 February

2012.

[2]      The appeal was subject to a number of call-overs, and minutes were issued by

Judges of this Court following those call-overs, on 20 March, 29 June, 14 August,

25 September and 11 December 2012.   Eventually, the appeal was set down for hearing on Friday 8 February 2013.

[3]      By a memorandum dated 4 February 2013, the appellant withdrew the appeal, together with certain interlocutory applications that he had made in relation to it.

[4]      In my minute of 5 February 2013 I vacated the fixture for 8 February and formally dismissed the appeal.  I indicated that if there were any issues as to costs, the parties should advice the Registrar following which I would make timetabling orders for submissions.

[5]      Mr  Willoughby,  counsel  for  the  first  respondent,  filed  a  memorandum seeking  costs  on  7 February  2013.    The  appellant  filed  a  memorandum  dated

6 February, on 11 February.  As I noted in a minute that I issued on 15 February, it appeared from his memorandum that the appellant was seeking costs in his favour, and he also raised other issues which were not relevant given the withdrawal of the appeal.  I stated that he was plainly not entitled to an award of costs in his favour and that the issue of costs arose because he had withdrawn his appeal.  I also stipulated that he should respond to the application for costs made by counsel for the first respondent within five working days.

[6]      Mr Pearce has now filed a document dated 22 February 2013 addressed to “The Trustee, High Court at Auckland” and others.  Mr Pearce raises various issues which he says require resolution before the Court considers the first respondent’s application for costs.  Consequently, he does not address the costs issues which is what I ordered him to do.

[7]      Mr Pearce persistently raises an issue as to whether or not the judgment against which he has appealed and now withdrawn his appeal was sealed.  It is clear from the record that the judgment has been sealed.

[8]      As   Mr  Willoughby  has   pointed   out   in   his  further  memorandum   of

27 February 2013, Mr Pearce has made no attempt to address or engage with the question of costs on his dismissed appeal.

[9]      Mr Willoughby’s  memorandum  of  7 February  2013  set  out  a  detailed application for costs, which was justified by reference to schedules setting out the attendances which have been necessary in relation to the appeal.  Some attendances claimed do not fit within the categories of costs items set out for appeals in Schedule

3 of the High Court Rules.  Otherwise, the costs claimed by Mr Willoughby were calculated for each step taken on the basis of category 2 band B.

[10]     Where claims have been made which are not within items in Schedule 3 for appeals, Mr Willoughby has relied by analogy on time allocations appropriate for general civil proceedings.  It is clear from a reading of the file that the appeal had a fraught interlocutory history because of the stance adopted by the appellant.  That is why so many conferences had to occur, some of which were lengthy.  The appellant also filed extensive amounts of written material which Mr Willoughby quite properly points out he had to read and try to understand.   In all the circumstances I am satisfied  that  the  items  set  out  in  the  schedule  attached  to  Mr Willoughby’s memorandum of 7 February 2013 and the quantum claimed for costs are appropriate. The result is a costs liability in the sum of $6,392.

[11]     Given the general tenor of the documents that have been filed in this matter by the appellant, I also agree with Mr Willoughby’s submission that the costs should be accompanied by particular orders about their payment.

[12]     I therefore order that:

(a)       The appellant Ronald Frederick Pearce is to pay the costs of the first respondent in this matter in the sum of $6,392.

(b)The costs are to be paid to the first respondents by Messrs Ellice Tanner, solicitors, Hamilton out of funds held by them for the Estate of Frederick Arthur Pearce under an irrevocable undertaking given in proceedings in this Court under number CIV-2009-404-0993.

(c)      After the payments  required  by these orders  and any other Court orders against the Estate of Frederick Arthur Pearce are made, Ellice Tanner are to pay the residue of the funds that they hold of the Estate of Frederick Arthur Pearce, as directed by Ronald Frederick Pearce (the appellant).