Sax v Simpson - [2017] NZHC 1128

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV 2013-470-495 [2017] NZHC 1128

BETWEEN
JANINE DAVINA SAX

Applicant

AND

LUKE ANDREW SIMPSON First Respondent

TAURANGA FAMILY COURT Second Respondent

Hearing: On the papers

Judgment:

29 May 2017

JUDGMENT OF DUFFY J

This judgment was delivered by me on 29 May 2017 at 1.00 pm pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar

SAX v SIMPSON [costs] [2017] NZHC 1128 [29 May 2017]

[1] On 30 June 2015 I delivered a judgment in which the applicant, Janine Sax, had some measure of success persuading me to set aside a security for costs order that Doogue AJ had made against her in this proceeding. However, in respect of one matter, which related to a judicial review of the decision by Judge Geoghan to make an order dissolving the parties’ marriage, I refused to set aside the security for costs
order.1 At the time I heard the application to set aside the security for costs order the

first respondent, Mr Simpson, was legally represented by Mr Eggleston.

[2] Later Ms Sax applied for recall of my 30 June 2015 judgment insofar as it related to the security for costs for judicial review of the dissolution order. At the hearing of the recall application Mr Simpson appeared in person to oppose that application. I delivered judgment refusing recall.

[3] Costs are now sought for Mr Simpson in respect of the recall application. The memorandum seeking costs has been filed by Mr Eggleston who records himself as counsel for Mr Simpson. The memorandum states that while Mr Simpson appeared in person at the hearing of the recall application he engaged counsel to advise him throughout the recall application, including the preparation of the written submissions tendered by Mr Simpson. Mr Eggleston notes that the time allocation at category 2B for preparation of submissions is 1.5 days. However, in the present circumstances Mr Eggleston submits a time allocation of 0.75 days would be a fair allowance. Accordingly, he seeks category 2B costs for that time allocation for his engagement in the preparation of the submissions. On this approach costs would total $1,672.50.

[4] Since the costs memorandum was filed there has been no memorandum filed by Ms Sax. It is clear to me that she was unwell in the latter part of 2016, but there is nothing to suggest to me that she is currently unwell.

[5] The general rule is that costs follow the event.2 However, there is an established rule that a lay litigant is not entitled, except in exceptional cases, to

1 Sax v Simpson [2015] NZHC 3286 .
2 High Court Rules 2016, r 14.2(a).

recover costs for his or her time and trouble.3 There is nothing about the circumstances in this case to bring it within the exception.4 Accordingly Mr Simpson has no entitlement to costs for any preparatory work he did on the submissions.

[6] A party who has been legally represented and who subsequently…

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 Sax v Simpson

Details

AGLC: Sax v Simpson [2017] NZHC 1128
Case: [2017] NZHC 1128
Decision Date: 29 May 2017

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Sax v Simpson involves an application for costs by Luke Andrew Simpson against Janine Sax. The dispute originated from a security for costs order made by Judge Geoghan in relation to the judicial review of a dissolution order made by the court. The initial judgment was delivered on 30 June 2015, where the applicant, Janine Sax, was successful in having a security for costs order set aside. However, this did not include the judicial review of the dissolution order. Simpson subsequently applied for recall of the initial judgment, which was refused. Now, Simpson seeks costs for the recall application, which was opposed by Sax.

The legal issues that the court had to determine were whether Simpson was entitled to costs for the preparatory work done by his counsel, Mr Eggleston, and whether the court should recognise Mr Eggleston as Simpson's representative. The court needed to decide whether Simpson was entitled to costs for his self-representation and if the assistance provided by his counsel could be considered as a basis for awarding costs. The court also had to consider whether the recall application had any merit and if the principles of awarding costs to self-represented parties applied.

The court found that there was no merit in the recall application and that the principles of awarding costs to self-represented parties applied. The court held that Simpson did not fall within the exception to the general rule against costs awards for self-represented persons. The court also held that Mr Eggleston did not provide sufficient basis to be recognised as Simpson's representative. The court noted that the time allocation for preparation of submissions was 1.5 days, but in the present circumstances, a time allocation of 0.75 days would be fair. However, the court declined to exercise its discretion to award costs in the present circumstances.

The court dismissed Simpson's application for costs, and the final order was that the application by Simpson for costs is dismissed.

Orders