Simon v Wright

[2013] NZHC 2509

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2012-485-2356

[2013] NZHC 2509

IN THE MATTER

of an appeal under s 39 of the Property (Relationships) Act 1976

BETWEEN

MS SIMON

Appellant

AND

MR WRIGHT

Respondent

In chambers

Judgment:                  25 September 2013

JUDGMENT OF THE HON JUSTICE KÓS

(Costs)

[1] On 17 July 2013 I dismissed an appeal by Ms Simon (the wife) against a decision of Family Court Judge Johnston dividing the relationship property of these parties equally.

[2]    Now the husband, successful in opposing that appeal, applies for indemnity or increased costs. His actual costs were $30,621, inclusive of GST and disbursements.

[3]      The husband points in particular to a Calderbank offer made by him on 7 December 2012. It was one of a number of such offers made, but the only one relevant, as it is the only one that post-dated the Family Court decision. That offer was subject to two conditions:

SIMON v WRIGHT [2013] NZHC 2509 [25 September 2013]

(a)that the matrimonial home be marketed for sale “at an asking price which is the average of an assessment of the realistic sale price of a property undertaken by [four] real estate firms”; and

(b)that on the sale of the house at that price (or such lesser price as agreed or directed) the assets be divided equally on the basis of the Family Court’s judgment, except with an additional $30,000 from the husband to the wife.

[4] The wife says that costs should follow the event, and should be on the “2B” basis agreed in a joint memorandum to the Court on 22 November 2012. Costs on that basis would be $8,955.

Indemnity costs

[5] There is no basis for the payment of indemnity costs in this case. None of the criteria in r 14.6(4) are applicable. Although the appeal was unsuccessful, it was by no means vexatious or improper.

Increased costs

[6]    The Calderbank offer was not a clear one.  It depended on part on conditions as to sale of the house. In response to it, the wife sought a clear $1.3 million minimum sale price. Other issues, such as who would market the house and the agent’s commission rate, also arose in her response. In the maelstrom of all the marketing issues, the Calderbank offer abated.

[7] It cannot be said that the complex offer of 22 November 2012 was rejected without reasonable justification. Accordingly r 14(6)(3)(b)(v) does not apply here. There is no basis, therefore, for the award of increased costs.

Categorisation

[8] The husband says that the initial nomination of category 2 band B by counsel “does not mean that a compact or other limitation has been formed which prevents costs otherwise being treated in the Court’s discretion as circumstances require”.

[9] That may be so, but it will be an exceptional case where a costs categorisation will be altered from the initial assessment. An essential aspect of the current costs regime is predictability.

[10] The purposes of categorisation under r 14.3 is to mediate between straightforward, average and complex cases. There can be no doubt in this case that category 2 was properly nominated. This was an appeal of average complexity, albeit that it was argued most capably by two counsel with seniority and skill.

[11] The banding exercise under r 14.5 is a separate exercise which requires consideration of each step, on an ex post facto basis. Some cases that are of average complexity may have greater or lesser time requirements for particular steps. Band B – the “normal amount of time” – is the default position. But a case can be made, on a step by step basis, for elevation or diminution.

[12] In this case that does not arise, because it is not suggested that any individual step in this case required more than the normal amount of time.

Conclusion

[13]  In this case there is no basis to depart from counsel’s initial categorisation of the case as a category 2 one.

[14]  Nor is there any basis to reach a conclusion that costs ordered to be other than on a band B basis.

Result

[15] The husband, as the successful respondent, will therefore have costs in the High Court on a category 2 band B basis.

Stephen Kós J

Solicitors:

Foley & Hughes, Auckland for Appellant

Gault Mitchell Law, Wellington for Respondent