Sawyer v Homewood - [2015] NZHC 2781

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-1809 [2015] NZHC 2781

UNDER the District Courts Act 1947

IN THE MATTER OF

an appeal against a decision of the District
Court at Waitakere

BETWEEN

BELINDA MARIE SAWYER AND MICHAEL ANDREW SAYWER First Appellants

AND

JENNIFER MARY POWELL Second Appellant

AND

ROBERT BERNARD HOY Third Appellant

AND

AMANDA ROSEMARY HOMEWOOD First Respondent

AND

ROBBIE KAIVITI Second Respondent

Hearing: 5 November 2015

Appearances:

E J Grove for the Appellants
Respondents in person

Judgment:

10 November 2015

JUDGMENT OF THOMAS J

This judgment was delivered by me on 10 November 2015 at 2.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Counsel:
E J Groove, Auckland.

SAWYER AND SAYWER v POWELL [2015] NZHC 2781 [10 November 2015]

Introduction

[1] The appellants appeal against the decision of a District Court Judge who declined to award costs in favour of the appellants.

[2] As a preliminary matter, the appeal was brought approximately seven days out of time. At the hearing, I gave leave to commence the appeal out of time given that the length of delay was minimal; there was no prejudice arising to the respondents from the delay; and the appeal has merit.

Background

[3] The respondents applied for restraining orders in the District Court against the appellants pursuant to the Harassment Act 1997.

[4] The Judge dismissed the application on the grounds of a lack of jurisdiction because the appellants were considered to be “in a domestic relationship” with the respondents, as defined in s 4(1)(b) of the Domestic Violence Act 1995. In any event, the Judge was not satisfied that the alleged complaints amounted to acts sufficiently serious to warrant the making of orders sought.

[5] The Judge did not make an award for costs. He referred to the respondents’

submission that a costs order would cause them hardship. He then said:

Having given the matter some thought I am of the view that it is not appropriate to make an award of costs in this case. There is already considerable tension, and dissension in this family and I am of the view that an order for costs would unduly exacerbate an already unsatisfactory state of affairs.

[6] The appellants’ submission is that the Judge was wrong both in law and in

fact in declining to award costs. The appellants seek costs on a 2B basis. [7] The respondents are self-represented and oppose the appeal.

Approach on appeal

[8] The appeal against a costs decision is an appeal against an exercise of discretion. The Court of Appeal in Acernus Aero Ltd v Vincent Aviation Ltd confirmed that the assessment of costs is essentially a matter for the Judge who has the conduct of the case: “[i]n defence to the special advantage enjoyed by a trial judge, this Court is slow to upset costs awards”.1

[9] An appellate court will not interfere unless satisfied that the Judge who made the order acted on a wrong principle, or…

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 Sawyer v Homewood

Details

AGLC: Sawyer v Homewood [2015] NZHC 2781
Case: [2015] NZHC 2781
Decision Date: 10 November 2015

CaseChat Overview and Summary

The High Court of New Zealand, Auckland Registry, was presented with an appeal concerning the decision of a District Court Judge who declined to award costs in favour of the appellants in a case brought under the Harassment Act 1997. The appellants sought costs on a 2B basis, arguing that the Judge was incorrect in declining to award costs. The respondents, self-represented, opposed the appeal.

The primary legal issue before the court was whether the District Court Judge had erred in declining to award costs to the appellants. The court had to determine if the Judge acted on a wrong principle, failed to consider relevant matters, or was plainly wrong in making the costs decision. The court also needed to assess the appropriate costs that should have been awarded to the appellants.

In its judgment, the court found that the District Court Judge did not properly exercise the discretion to award costs. The Judge failed to consider the principle that the unsuccessful party should pay costs to the successful party unless there were exceptional reasons not to do so. The Judge also did not adequately consider relevant factors such as the unsuccessful nature of the respondents' application, the financial position of the appellants, and the escalation of family tensions. The court concluded that the Judge either took into account irrelevant considerations, failed to take into account relevant considerations, or was plainly wrong. The court held that the appellants were entitled to costs in the District Court and set the costs at the same rate for the appeal.

The court's final orders included the setting of costs for the appellants in the District Court and on appeal, reflecting the straightforward nature of the proceedings and the relatively straightforward jurisdictional issue.

Orders