S v M HC Wellington CIV-2006-485-1940
[2007] NZHC 1756
•24 May 2007
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2006-485-1940
IN THE MATTER OF an appeal pursuant to s174 Family
Proceedings Act 1957
BETWEEN S Appellant
AND M Respondent
Judgment: 24 May 2007
In accordance with r540(4) I direct the Registrar to endorse this judgment with the delivery time of 12.30pm on the 24th day of May 2007.
JUDGMENT AS TO COSTS
[1] I delivered a reserved judgment in respect of this appeal on 17 April 2007 reserving the question of costs. I had understood from the respondent’s submissions that the appellant was legally aided but nevertheless the respondent wished to be heard on costs.
[2] It transpires that in fact the appellant was not in receipt of legal aid for the appeal such having been refused on 24 October 2006. According to counsel for the respondent she had not been informed of that situation until the date of hearing of the appeal. The position is that both parties are not legally aided, although the appellant was in receipt of legal aid in respect of the Family Court proceeding and no order could be made in respect of those.
[3] The respondent seeks costs on a solicitor/client basis for the appeal which total $4,353.75. The appellant, through his counsel, opposes an order on the basis
S V M HC WN CIV-2006-485-1940 24 May 2007
that he is in receipt of a benefit, suffers from depression, is unable to work and has significant debts.
[4] The appellant was able to benevolently obtain a waiver of the filing fee in respect of the appeal and the hearing fee. It is unclear, but unlikely, that any security for costs in terms of R543 of the District Courts Rules was given.
[5] Essentially the position is a non-legally aided appellant has pursued an unsuccessful appeal yet seeks to be absolved from any order for costs. The Court has seen certain bank and Inland Revenue documents the appellant submitted in which he says it is not possible for him to raise a loan at the moment to pay any order for costs. Counsel’s memorandum refers to the fact that $3,500 was obtained by the appellant to fund his appeal. The Court has a discretion to grant or refuse costs. In normal circumstances costs on appeal should follow the outcome. In the present case the appellant elected to proceed with the appeal despite it having little prospect of success, evident from the refusal of legal aid. The respondent has been put to significant expense in successfully resisting the appeal.
[6] If the appellant was able to fund his appeal through private borrowings as appears to be the case, there is no reason why he cannot do so to meet the Court order for costs. I am mindful the evidence before the Family Court was that the appellant travelled between May 1986 and early 2006 from New Zealand to Malaysia several times and was receiving interim maintenance in the sum of $350 per week from the respondent until completion of the Family Court proceedings. There was evidence referred to by the Family Court Judge that a payment of $10,000 was made to the appellant shortly before the Family Court hearing in July 2006 as part of a proposal that the respondent pay $100,000 to him. Although the proposal was later recanted it appears that the $10,000 nevertheless was paid (see paras [30]- [35] of the Family Court judgment and the Judge’s conclusions):
“…that the applicant felt able to and did exploit the respondent financially, at a time of vulnerability…”
[7] I am not satisfied that there is any good reason that the usual outcome should prevail, namely that costs follow the event. The appeal is misguided and bound to fail.
[8] With its costs in favour of the respondent on a global basis, not fully indemnity costs, but close to it because in my view that accords with the interests of justice.
[9] Accordingly, I fix costs to be paid by the appellant to the respondent in the sum of $4,000.
…………………………….
Solicitors:
C J Nicholls, Lower Hutt for AppellantGrigg & Le Page, Lower Hutt for Respondent
J W Gendall J
0
0
0