Piper v Salinas

[2017] NZHC 699

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-2784 [2017] NZHC 699

IN THE MATTER

of an appeal pursuant to s 174 of the

Family Proceedings Act 1980

BETWEEN

BRADLEY PAUL PIPER Appellant

AND

LOURDES SALINAS Respondent

Hearing:	On the papers
Counsel:	P J Stevenson for Appellant T Homes for Respondent
Judgment:	11 April 2017

COSTS JUDGMENT OF MUIR J

This judgment was delivered by me on Tuesday 11 April 2017 at 12.30 pm

Pursuant to Rule 11.5 of the High court Rules.

Registrar/Deputy Registrar

Date:…………………………

Counsel/Solicitors:

P J Stevenson, Barrister, Auckland

T Homes, Vallant Hooker & Partners, Ponsonby

PIPER v SALINAS [2017] NZHC 699 [11 April 2017]

[1]      Ms Salinas applies for an order as to costs in relation to Mr Piper’s appeal against an interim spousal maintenance award made by the Family Court and which, following  discussions  between  the  Bench  and  counsel,  was  abandoned  on  23

February 2017.

[2]      There is broad agreement between counsel in terms of the relevant costs calculation on a 2B basis.  The only difference between them is that the respondent claims a half day for the appearance on 23 February whereas the appellant says that the  appropriate  allocation  is  one  quarter  of  a  day.    The  hearing  concluded  at

11.20 am.  I consider that an allocation of $557.50 (one quarter day) is appropriate. On that basis a 2B allocation of costs totals $10,815.50.  Initially Ms Salinas sought a 2B award in her favour.

[3]      Ms Stevenson’s position is, however, that the award of costs should be significantly smaller.  She says that the appeal was part of wider family proceedings, that there is a modest pool of relationship property assets and that an award of costs on a 2B basis results in a “diminution of resources available to the parties to finally resolve their differences as to division of relationship property”.  She contends that in my overall discretion as to costs any award should be limited to an amount of

$2,500.

[4]      I cannot accept that submission.  While all matters in relation to costs are at the discretion of the Court, that discretion is not unfettered.  In the event of dismissal of an appeal following abandonment, the respondent’s rights to apply for an order as to costs are recognised in r 20.1.2(2) and the relevant principles are more generally contained in rr 14.2-14.10.  The Court’s discretion is exercisable only in situations not contemplated by the Rules or which are not fairly recognised by them.   Any more  generalised  discretion  would  undermine  the  r 14.2(g)  principle  that  the determination of costs should be predictable and expeditious.

[5]      In particular, I do not accept the submission that an award on a 2B basis necessarily diminishes the pool of assets available for settlement of the parties’ relationship  property  claims.    Such  claims  will  be  determined  on  the  basis  of valuation of such assets excluding the effect of interim costs orders which have, been

made against both parties since their separation and subsequent commencement of proceedings.

[6]      I see nothing in the overall circumstances of the case therefore which make it ineligible for the application of a standard approach to costs.

[7]      Secondly, Ms Stevenson says that an award on a 2B basis would exceed the costs actually incurred by Ms Salinas on the appeal.  That submission was made on the basis that, as at the date Ms Stevenon’s memorandum was filed, there was no evidence  before  the  Court  as  to  Ms  Salinas’ actual  costs.    In  response  to  that memorandum I sought from counsel for Ms Salinas’ confirmation of actual costs incurred by her client on the appeal.

[8]      On 30 March 2017 I received a memorandum stating that Ms Salinas:

(a)       was not in a position to pay costs on the appeal because her funds were exhausted;

(b)      was not in receipt of a grant of legal aid;

(c)       had not yet been paid any amount on account of the Family Court’s

interim spousal maintenance award’ and

(d)      that there remained unpaid costs by Mr Piper.

Counsel stated, however, that Ms Salinas had been invoiced  the sum of $9,200 including GST (plus $70 for disbursements) in relation to the appeal.  A claim was made in that amount.

[9]      I remind counsel of the provisions of r 14.2(f).  It is inappropriate that a costs application ever be made in an amount exceeding the actual costs incurred by a party.

[10]     On receipt of that amended claim I further questioned whether, on account of

Ms Salinas’ offshore residence, it was appropriate that she be billed (and the costs

claim made) on a basis which included GST.  In response I have been advised that

Ms Salinas is to be re-invoiced on a zero rated basis.

[11]    I accordingly award costs to Ms Salinas in the amount of $8,000 plus disbursements of $70.

[12]     I record that I regard as unsatisfactory the fact that, despite the absence of a stay, Mr Piper has not adhered to the terms of the interim spousal maintenance award nor (if that is the case) paid awards of costs made against him.   He should be on notice that default in observance of the courts’ orders may have implications in terms of the future course of proceedings.

[13]     I repeat the observations made in my Minute of 23 February 2017 to the effect that where, as in this case, the value of relationship property is comparatively modest and where the wellbeing of three young children is at stake the parties have a mutual obligation to adopt a more co-operative approach than has thus far been demonstrated in these proceedings.

[14]     I direct that the security for costs currently held by the Court be paid to the respondent.

Muir J