SN v MN

Case [2017] NZHC 3117 14 December 2017

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2015-404-754 [2017] NZHC 3117

IN THE MATTER of the Domestic Violence Act 1995

BETWEEN

SN Appellant

AND

MN Respondent

Hearing: On the papers

Appearances:

M J McCartney QC for Appellant
V A Crawshaw for Respondent

Judgment:

14 December 2017

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 14 December 2017 at 11.30 am pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date: ...................................

Solicitors: Rob Webber & Associates, Auckland
Sean Kelly Lawyers, Auckland

Counsel: M J McCartney QC, Auckland
V A Crawshaw, Auckland

SN v MN [2017] NZHC 3117 [14 December 2017]

[1] This judgment determines an application by SN, that is Mrs N, for costs. I have previously made an order for costs in favour of MN or Mr N, he being the successful party before me. Since I made that order, the Court of Appeal has allowed Mrs N’s appeal against my judgment but otherwise made no order regarding costs in the High Court.

Chronology

[2] On 5 April 2016, I dismissed Mrs N’s appeal from a decision of Judge D A Burns of the Family Court and invited the parties to submit memoranda if they were unable to agree the matter of costs.1 Having received memoranda from counsel, by minute on 13 May 2016, I ordered Mrs N to pay costs on a 2B basis (“order as to costs”). Mrs N has not paid those costs and Mr N has not sought to enforce the order.

[3] On 10 August 2016, the Court of Appeal granted Mrs N leave to appeal on specified grounds (none of which concerned my order as to costs), and said:2

CThere will be no order for costs on the application for leave given that the respondent’s opposition was reasonable.

[4] The Court of Appeal heard Mrs N’s appeal on 31 May 2017. Mr N did not appear. The Court of Appeal allowed the appeal; made a protection order to take effect from the date of the judgment; stated that, if he wished, Mr N could apply to the Family Court for a discharge of the order; and made no order for costs on the appeal.3 The Court of Appeal’s judgment does not address the issue of costs in the High Court. In fact, there is no suggestion on the face of the judgment or from Ms McCartney that the issue was raised. The Court of Appeal did not quash my order as to costs or remit the matter of costs back to the High Court.

Steps in the High Court following Court of Appeal decision

[5] By memorandum to the High Court dated 31 July 2017, Ms McCartney sought costs for Mrs N on a 2B basis.

1      SN v MN [2016] NZHC 566, [2016] NZFLR 447.
2      SN v MN [2016] NZCA 384.
3      SN v MN [2017] NZCA 289, [2017] 3…

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 SN v MN

Details

AGLC: SN v MN [2017] NZHC 3117
Case: [2017] NZHC 3117
Decision Date: 14 December 2017

CaseChat Overview and Summary

In the High Court of New Zealand, SN (Mrs. N) appealed against a decision of the Family Court which was dismissed by Justice Peters. The Court of Appeal allowed the appeal but did not address the issue of costs in the High Court. SN subsequently applied for costs on a 2B basis, which were previously ordered in favour of MN (Mr. N). The primary legal issue was whether the High Court has jurisdiction to reconsider an earlier award of costs if an appeal against the High Court judgment succeeds.

The Court considered several authorities, including Haronga v Waitangi Tribunal, LSG Sky Chefs New Zealand Ltd v Pacific Flight Catering Ltd, Wholesale Distributors Ltd v Songle Supermarket Ltd, and Americhip, Inc v Dean. The Court found that none of these cases were directly relevant to the present situation, as they involved either costs ordered following an interlocutory application or an order to quash the High Court's order as to costs. The Court concluded that it did not have jurisdiction to make the order SN sought, and that the earlier order as to costs remains in effect until it is quashed by the Court of Appeal.

Justice Peters dismissed SN's application for costs. The Court found that it did not have jurisdiction to reconsider the earlier order as to costs, even though SN's appeal on the merits was successful. The Court emphasised that the general approach is for the Court of Appeal to quash the High Court order as to costs and ask the High Court to reconsider the matter of costs, which did not occur in this case.

Orders