SHJ v PBJ

[2012] NZHC 2698

NOTE: PURSUANT TO S 169 OF THE FAMILY PROCEEDINGS ACT 1980, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO

11D OF THE FAMILY COURTS ACT 1980.  FOR FURTHER INFORMATION PLEASE SEE THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-1877 [2012] NZHC 2698

BETWEEN  SHJ Appellant

ANDPBJ Respondent

Hearing:         On the Papers

Counsel:         J McCartney SC for Appellant

JH Hunter for Respondent

Judgment:      16 October 2012

COSTS JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 16 October 2012 at 12 midday

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:

G Skeates, Graeme Skeates Law, Auckland.
J Hunter, Hunter Law, Auckland:  [email protected]

Copy:

J McCartney SC, Barrister, Auckland:  [email protected]

SHJ V PBJ HC AK CIV-2012-404-1877 [16 October 2012]

[1]      On 6 September 2012, I declined an appeal by SHJ against a refusal of the Family Court to transfer proceedings under the Property Relationships Act 1976 to this Court for determination.[1]   I reserved costs noting that the respondent was “prima facie entitled to costs.”  In the absence of agreement between the parties I gave the respondent time to file a memorandum as to costs on or before 28 September 2012, with the appellant having until 12 October 2012 to file a reply.

[1] SHJ v PBJ [2012] NZHC 2292, 6 September 2012.

[2]      On 8 October 2012, the respondent filed a memorandum seeking costs and sought, retrospectively, an extension of the time to apply.  On 12 October 2012, the appellant filed a memorandum opposing leave to extend time but, in the event that such leave was given, opposing any order for costs.

[3]      The respondent’s memorandum did not give any reason for the failure of the respondent to file his costs application within the time prescribed, but that time had been fixed without reference to the parties.   In the circumstances,  I  consider it appropriate to grant leave to the respondent to file his application out of time.

[4]      While costs on an appeal usually follow the result,[2]  costs remain in the discretion of the Court[3]  and there is an unusual feature in this case which justifies departure from a strict application of the costs schedule.  As Ms McCartney points out in her memorandum on behalf of the appellant, the respondent did not oppose the

appeal.  It was argued on the basis that, although the respondent was content for the proceeding in the Family Court to be transferred to this Court for hearing, it was for this Court to determine whether it was prepared to direct the transfer.

[2] High Court Rules, r 14.2(a).

[3] High Court Rules, r 14.1(1).

[5]      The position taken by the respondent on the appeal reflected the position which the respondent took at the time the application for transfer was made to the Family Court.

[6]      On this basis Ms McCartney submits that costs should lie where they fall.

[7]      It is true that the respondent did not take an active part in the appeal and it would have been open to the respondent to simply have filed a memorandum indicating that he abided the decision of the Court.  Nevertheless, the transfer was sought by the appellant and counsel for the respondent would have been obliged to consider the notice of the appeal and take some steps with respect to it.   In the circumstances, I consider a claim for the equivalent of 1.7 days’ scale costs to be excessive,  but  the  respondent  should  have  some  compensation  for  the  time reasonably taken by counsel in respect of the appeal.

[8]      The appellant shall pay the sum of $1,500 by way of a contribution to the

respondent’s costs on the appeal.

..............................................

Toogood J