Pillay v Family Court

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-245

[2024] NZHC 880

UNDER Care of Children Act 2004 and Judicial Review Procedure Act 2016

IN THE MATTER OF

A judicial review of the decision of the Family Court Judge at Auckland on

25 January 2022

BETWEEN

MARK PILLAY

Plaintiff

AND

FAMILY COURT

First Defendant

RAVASHINEE MANDY PERUMAL

Second Defendant

Hearing: On the papers at Auckland

Judgment:

19 April 2024

JUDGMENT (NO.3) OF POWELL J

[Costs on application to stay enforcement of costs]

This judgment was delivered by me on 19 April 2024 at 3.30 pm pursuant to
r 11.5 of the High Court Rules

…………………..
Registrar/Deputy Registrar

MARK PILLAY v FAMILY COURT [2024] NZHC 880 [19 April 2024]

[1] On 20 December 2023, I dismissed Mr Pillay’s application to stay enforcement of an earlier costs judgment.1

[2] In doing so, I awarded costs on a 2B basis against Mr Pillay in favour of Mr Kannemeyer and the Ministry of Business, Innovation and Enterprise (“MBIE”). I directed both Mr Kannemeyer and MBIE to file calculations of the costs sought on a 2B basis and gave Mr Pillay leave to file submissions in opposition to the quantum of those costs.

[3] Both Mr Kannemeyer and MBIE have filed calculations as directed. Mr Kannemeyer seeks a total of $5,736 for filing opposition to interlocutory application, preparation of written submissions and obtaining judgment without appearance. MBIE has sought $5,019 for the filing opposition to the interlocutory application and the preparation of written submissions. No submissions have been provided by Mr Pillay in opposition.

[4] Having considered the amounts claimed, I am satisfied that both Mr Kannemeyer and MBIE are entitled to costs for filing opposition to the interlocutory application and the preparation of written submissions. I do not allow Mr Kannemeyer the costs sought under “obtaining judgment without appearance” as it would be an inappropriate windfall in the circumstances, given the steps taken by Mr Kannemeyer in response to Mr Pillay have already been acknowledged under the other two headings.

[5] As a result, on the application to stay the costs judgment, I award both Mr Kannemeyer and MBIE costs in the sum of $5,019 against Mr Pillay.

Powell J

1 Pillay v Family Court (No 2) [2023] NZHC 3750; and Pillay v Family Court [2023] NZHC 848 respectively.

CaseChat Overview and Summary

The High Court of New Zealand, Auckland Registry, dealt with an application for judicial review concerning the decision of the Family Court Judge at Auckland on 25 January 2022. The plaintiff, Mark Pillay, sought a review of the Family Court's decision, with the Family Court and Ravashinee Mandy Perumal as the defendants. The case centred on the enforcement of costs awarded under the Care of Children Act 2004 and the Judicial Review Procedure Act 2016. The plaintiff’s primary contention was to halt the enforcement of these costs, which were initially awarded on a standard basis.

The court was tasked with determining whether the costs awarded were appropriate and whether the plaintiff’s application to stay enforcement should succeed. The key legal issues revolved around the proper application of the costs provisions under the relevant statutes and the circumstances justifying the stay of enforcement. Specifically, the court examined whether the plaintiff had a sufficient basis to argue that the enforcement of the costs would cause him undue hardship or that the costs were excessive or unreasonable.

In its judgment, the court considered the submissions and calculations filed by the defendants, Mr Kannemeyer and the Ministry of Business, Innovation and Enterprise (MBIE). It found that both were entitled to costs for filing opposition to the interlocutory application and preparing written submissions. However, the court declined to award Mr Kannemeyer the costs associated with obtaining judgment without appearance, considering it an inappropriate windfall. Consequently, the court ordered that both Mr Kannemeyer and MBIE were to be awarded costs in the sum of $5,019 against the plaintiff, Mark Pillay. This judgment effectively dismissed the plaintiff's application to stay enforcement of the costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

UNDER	Care of Children Act 2004 and Judicial Review Procedure Act 2016
IN THE MATTER OF	A judicial review of the decision of the Family Court Judge at Auckland on 25 January 2022
BETWEEN	MARK PILLAY Plaintiff
AND	FAMILY COURT First Defendant RAVASHINEE MANDY PERUMAL Second Defendant