SDW v SEB
[2022] NZHC 1267
•1 June 2022
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-001477
[2022] NZHC 1267
UNDER the Care of Children Act 2004 and Family Violence Act 2018 BETWEEN
SDW
Appellant
AND
SEB
Respondent
Hearing: (On the papers) Judgment:
1 June 2022
COSTS JUDGMENT OF VENNING J
This judgment was delivered by me on 1 June 2022 at 11.30 am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: McVeagh Fleming, Auckland
Counsel: S Jefferson QC/L Reed, Auckland
G Askelund, Taupo
Copy to: SEB
SDW v SEB [2022] NZHC 1267 [1 June 2022]
[1] The Court of Appeal have declined SEB’s application for leave to appeal. The only remaining issue for this Court is the issue of costs.
[2] SDW seeks costs on the appeal and cross-appeal and on SEB’s unsuccessful application for leave to appeal as follows:
Appeal
$16,610.50
Less guardianship directions application
$6,453.00
Less application to adduce further evidence
$6,214.00
$3,943.50
Disbursements on appeal
$2,768.75
Application for leave to appeal (including disbursements)1
$2,100.00
Family violence cross-appeal
$12,540.25
Disbursements (half-share)
$948.75
TOTAL:
$22,301.25
[3] SEB oppose SDW’s application for costs. She argues that she did not fail in the appeal. She says she was largely successful because this Court accepted and upheld the principal factual findings of the Family Court judgment. SEB noted that the orders ultimately made by the Court were not those sought by the appellant but were a minor change to the Family Court orders and had been proposed initially by lawyer for the child.
[4] SEB seeks costs in the sum of $13,025.50 on the appeal, together with the costs in relation to the interlocutory applications relating to guardianship issues and the application to adduce evidence as noted above.
[5] SEB submits that on the family violence appeal each party was successful in part and unsuccessful in part. While her appeal was dismissed the Court rejected
1 Scale costs on the application for leave to appeal would be $3,704.50. SDW only incurred approximately $2,000 worth of costs and a $100 disbursement.
SDW’s attempt to support the Family Court decision on alternate grounds, namely that there had not been family violence. She submits the costs should lie where they fall on that appeal.
[6] SEB submitted that in any event, because of her difficult financial circumstances as disclosed in her affidavit and the importance of victims of family violence having access to the Court to ensure protection for them and their children, she and the child in issue should not be financially penalised.
[7] SEB submitted that, in making decisions pursuant to the Care of Children Act 2004 (COCA) the Court was required to consider the best interests of the child, which was also relevant to the issue of costs, particularly given her current difficult financial position.
[8] In her affidavit SEB explained that she has reduced the number of hours she works from 72 hours per fortnight to 28 hours per week, being 56 hours per fortnight and accordingly her income has reduced. She has done so to enable her to spend more time during the week with the child.
[9] In the context of the family violence appeal, SEB referred to the decisions of Harrison v Michelle and Pyke v Sherriff,2 noting that in Pyke v Sherriff Woolford J had stated:3
Accordingly, where a person has grounds to be fearful when they apply for the protection order, there should be no costs order against them. Unless the Judge concludes that the application was without merit, avoidable or should never have been brought, costs should lie where they fall. …
[10]The principal cost principles that apply in the present case are:
(a)the desirability for certainty – scale costs are generally appropriate as parties should be able to predict the position regarding costs;
(b)costs should follow the event; and
2 Harrison v Michelle [2021] NZHC 979; and Pyke v Sherriff [271] NZHC 1990.
3 Pyke v Sherriff, above n 2, at [27].
(c)overall costs remain at the discretion of the Court.
Analysis
[11] I reject SEB’s suggestion that she was effectively successful on the appeal under the COCA. SDW brought the appeal seeking a change in the orders made by the Family Court. While this Court rejected a number of the grounds advanced by SDW nevertheless the ultimate result was that the orders made in the Family Court were adjusted. They were adjusted in favour of SDW (which co-incided with the interests of the child). The fact SDW succeeded in the appeal is confirmed by SEB’s unsuccessful attempts to seek leave to appeal that decision.
[12] SDW is entitled to costs on the appeal and on the application for leave to apply as sought (with a minor adjustment) and after giving SEB credit for the two unsuccessful interlocutory applications SDW had pursued during the course of the hearing.
[13] The minor adjustment is in relation to the costs sought for the preparation of the costs memoranda. The Court is not minded to allow that. The costs memoranda are straightforward and do not warrant a further allowance. There will be a reduction of $239.00. I approve the disbursements which were properly incurred.
[14] I decline to make any further adjustment or reduction in relation to the costs on the appeal under the COCA or the family violence appeal for SEB’s financial circumstances. While SEB is now only working 56 hours a fortnight as opposed to the 72 hours she was previously working, that is by choice. She made that decision aware this issue of costs was outstanding and aware of her other outstanding financial obligations and commitments.
[15] The issue of costs on the family violence application cross-appeal is more nuanced. SEB is correct that, while her appeal was dismissed, the Court also rejected SDW’s attempt to support the Family Court decision on alternative grounds. His challenge to the finding of domestic violence was unsuccessful. In the circumstances I consider a reduction in the order for costs that would otherwise follow an unsuccessful appeal to be appropriate. I reduce the costs payable to SDW to 50 per
cent of the balance amount claimed after deduction of the amount claimed for preparation of the costs memorandum.
[16] While I acknowledge the comments of Woolford J noted above, both that case (Pyke v Sherriff) and the case of Harrison v Michelle referred to by SEB were appeals from costs decisions in the Family Court.4
[17] The underlying rationale contained in the comments of Woolford J are that a person should not be dissuaded from pursuing a meritorious application for a protection order in the Family Court. A different approach however, applies on an appeal from the substantive decision of the Family Court to this Court. Once the matter has been considered by a judge and the merits of the application ruled on, an applicant who chooses to appeal is in a different position.
[18] Notwithstanding that, given the practical outcome, and the Court’s rejection of SDW’s attempt to avoid the finding of domestic violence, a reduction in costs is appropriate as noted above.
Summary/outcome
[19] In the result, SEB is to pay SDW costs in relation to all matters in this Court in the sum of $13,491.63 calculated as follows:
(a)Net costs on the appeal and cross appeal: $3,650.50
(b)Disbursements $2,768.75
(c)50 per cent costs on the family violence appeal $6,123.63
(d)
Disbursements $948.75
$13,491.63
[20] I also direct the Registrar to refund the $2,390.00 paid by SDW as security for costs to SDW.
Venning J
4 Harrison v Michelle; and Pyke v Sherriff, above n 2.
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