Prasad v Prasad - [2016] NZHC 474

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING 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 AUCKLAND REGISTRY

CIV-2015-404-001535

[2016] NZHC 474

BETWEEN
LALIT PRASAD

Appellant

AND

SONYA PRASAD

Respondent

Hearing: On the papers

Counsel:

A C M Fisher QC for appellant D Chambers QC for respondent

Judgment:

18 March 2016

JUDGMENT OF KATZ J

[Costs]

This judgment was delivered by me on 18 March 2016 at 4:00pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Sanjay Sharma, Waitakere
Turner Hopkins, Auckland

Counsel:Antonia Fisher QC, O’Connell Street Barristers, Auckland Deborah Chambers QC, Bankside Chambers, Auckland

PRASAD v PRASAD [2016] NZHC 474 [18 March 2016]

Introduction

[1] Mr and Mrs Prasad separated on 6 January 2014. They were unable to resolve their relationship property issues and proceedings were issued in the Family Court. On 8 June 2015, a judgment was granted in favour of Mrs Prasad. The Family Court ordered that two houses that were relationship property be sold at public auction, with the proceeds of sale to be equally divided.1

[2] Mr Prasad filed an appeal against the Family Court decision on 3 July 2015. He also filed an interlocutory application for a stay pending appeal, supported by an affidavit. Mrs Prasad filed a notice of opposition to that application, together with a supporting affidavit. Mr Prasad filed a reply affidavit, which Mrs Prasad then purported to further reply to.

[3] Mr Prasad discontinued his appeal shortly before it was due to be heard on 28 October 2015. He says that this was because he received a disappointing valuation for his business, which made it clear that the sale of the properties (which he had hoped to purchase) was necessary.

[4] Mrs Prasad now seeks an award of costs in respect of the abandoned appeal. She seeks increased costs on the basis of Mr Prasad’s alleged conduct in relation to the appeal. In the alternative, Mrs Prasad seeks costs on a scale basis.

[5] Mr Prasad opposes any award of costs and submits that costs should lie where they fall. If costs are to be awarded, he submits that there is no basis for increased costs and that they should be awarded on a scale basis. I will consider the following issues in turn:

(a)Is an award of costs appropriate? If so;

(b)What costs is Mrs Prasad entitled to on a scale basis?

(c)Should increased costs be awarded?

1 Prasad v Prasad [2015] NZFC 4649.

Is an award of costs appropriate?

[6]The first issue is whether costs should be awarded at all.

Relevant legal principles

[7] Under r 15.23, a plaintiff who discontinues a proceeding must pay the defendant’s costs up to and including the date on which the proceeding was discontinued. However, this is subject to the court’s general discretion as to costs.2

[8] McGechan on Procedure summarises the key principles…

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 Prasad v Prasad

Details

AGLC: Prasad v Prasad [2016] NZHC 474
Case: [2016] NZHC 474
Decision Date: 18 March 2016

CaseChat Overview and Summary

Lalit Prasad and Sonya Prasad were a married couple who separated and were unable to resolve their relationship property issues. Sonya Prasad filed proceedings in the Family Court, and a judgment was granted in her favour on 8 June 2015. The Family Court ordered the sale of two houses, which were relationship property, with the proceeds of sale to be equally divided. Lalit Prasad filed an appeal against this decision, but later discontinued it, leading to Sonya Prasad seeking an award of costs in respect of the abandoned appeal. The court considered whether an award of costs was appropriate, the amount of costs on a scale basis, and whether increased costs should be awarded. The court found that an award of costs was appropriate and awarded Sonya Prasad $10,035.00 on a 2B scale basis. The court found that Mrs Prasad had not established that an award of increased costs was justified.

Orders