SN v MN

[2017] NZHC 3117

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 NZLR 448.

[6]      In response, Ms Crawshaw submitted that my earlier order remained in effect as it had not been quashed by the Court of Appeal and I had no jurisdiction to rescind that order or make any further order as to costs.  Alternatively, if I considered there was jurisdiction, costs were opposed on the ground, amongst others, that the Court of Appeal had not seen fit to make any order as to costs in that Court, whether on the application for leave or the substantive appeal.

[7]      I have since received several memoranda from counsel addressing the issue of whether the High Court has jurisdiction to reconsider an earlier award of costs if an appeal against the High Court judgment succeeds.  In the usual course of events the issue does not arise because the Court of Appeal will quash the High Court order as to costs and ask the High Court to reconsider the matter of costs. Neither occurred in the present case.

[8]      Despite that, Ms McCartney has submitted that the “general approach” is that the High Court will reconsider an earlier order as to costs if its judgment on the merits is overturned.4   Ms McCartney also referred me to several authorities in support of a submission that the Court “commonly reconsiders costs” in the event of a successful appeal to the Court of Appeal.5

Discussion

[9]      I have considered the authorities to which Ms McCartney has referred me but

I do not consider that I have jurisdiction to make the further order that Mrs N seeks.6

Although High Court Rules, r 14.8(2) permits the Court to revisit costs that it has previously ordered on an interlocutory application, there is no equivalent provision in respect of costs ordered following judgment.  None of the authorities to which I was

referred is directly relevant to the situation that arises in the present case.

4 Memorandum of Counsel for the Appellant dated 27 October 2017 at [8].

5      At [2]; and AC Beck and others McGechan on Procedure (looseleaf ed, Thomson Reuters) at

[HRPt14.17(11)].

6      Haronga v Waitangi Tribunal [2011] NZCA 670, (2011) 20 PRNZ 855; LSG Sky Chefs New Zealand Ltd v Pacific Flight Catering Ltd [2015] NZHC 685; Wholesale Distributors Ltd v Songle Supermarket Ltd [2015] NZHC 809; Americhip, Inc v Dean [Costs] [2015] NZHC 1871, (2015)

22 PRNZ 703; and Murrell v Hamilton [2014] NZCA 377, (2014) 3 NZTR 24-012.

Haronga v Waitangi Tribunal

[10]     In Haronga v Waitangi Tribunal, the Court of Appeal dismissed Mr Haronga’s appeal but made no order as to costs.7  The Supreme Court then allowed Mr Haronga’s appeal, awarded him costs in the Supreme Court and ordered the Court of Appeal and High Court to fix costs in those courts.8  I accept Ms McCartney’s submission that the Court of Appeal subsequently awarded costs to Mr Haronga as if it had allowed his appeal.  However, the important point for present purposes is that the Supreme Court had remitted the issue of costs back to the Court of Appeal which had, in any event, made no earlier order as to costs. These matters distinguish the case from the present.

LSG Sky Chefs New Zealand Ltd v Pacific Flight Catering Ltd

[11]     Likewise, in LSG Sky Chefs New Zealand Ltd v Pacific Flight Catering Ltd. In the first instance the High Court awarded costs to LSG as the successful party.9

[12]     The Court of Appeal allowed Pacific’s appeal against the High Court judgment on the merits, awarded costs on the appeal to Pacific, quashed the High Court order as to costs and directed the High Court to re-determine costs in accordance with the Court of Appeal’s judgment, which the High Court did.10

Wholesale Distributors Ltd v Songle Supermarket Ltd

[13]   The case closest to the present is Wholesale Distributors Ltd v Songle Supermarket Ltd, but in that case the High Court was reconsidering costs awarded on an interlocutory application, as to which the (then) High Court Rules, r 14.8(2)

applied.11

7      Haronga Jnr v Waitangi Tribunal [2010] NZCA 201.

8      Haronga v Waitangi Tribunal [2011] NZSC 53, [2012] 2 NZLR 53 at [152].

9      LSG Sky Chefs New Zealand Ltd v Pacific Flight Catering Ltd [2012] NZHC 2810 at [73].

10     Pacific Flight Catering Ltd v LSG Sky Chefs New Zealand Ltd [2013] NZCA 386, [2014] 2 NZLR

1 at [42] and [43]; and LSG Sky Chefs New Zealand Ltd v Pacific Flight Catering Ltd, above n 6. The Supreme Court’s subsequent dismissal of LSG’s appeal did not affect the matters referred to above.  See LSG Sky Chefs New Zealand Ltd v Pacific Flight Catering Ltd [2014] NZSC 158, [2016] 1 NZLR 433.

11     Wholesale Distributors Ltd v Songle Supermarket Ltd, above n 6.

[14]     In that case, Moore J had declined WDL’s application for an interim injunction and awarded costs against WDL.12    Although the Court of Appeal allowed WDL’s appeal and awarded WDL costs on the appeal, it did not quash the High Court order as to costs nor remit the matter of costs on the application back to the High Court.13

Moore J had jurisdiction to revisit his earlier order and to make a fresh order in favour of WDL under r 14.8(2) which provides:

14.8     Costs on interlocutory applications

(1)       Costs on an opposed interlocutory application, unless there are special reasons to the contrary,—

(a)       must be fixed in accordance with these rules when the application is determined; and

(b)      become payable when they are fixed.

(2)       Despite subclause (1), the court may reverse, discharge, or vary an order for costs on an interlocutory application if satisfied subsequently that the original order should not have been made.

(3)      This rule does not apply to an application for summary judgment.

[15]     As I have said, there is no equivalent provision to r 14.8(2) in respect of costs awarded after judgment.

Americhip, Inc v Dean

[16]     Ms McCartney also referred me to Americhip, Inc v Dean.  In that case Ellis J had dismissed Americhip’s proceeding on the ground the Court had no jurisdiction to hear and determine the claim.  Ellis J awarded costs to Mr Dean.14

[17]     The Court of Appeal allowed Americhip’s appeal, ordered Mr Dean to pay costs in the Court of Appeal and quashed Ellis J’s order as to costs.15   Other than that, however, the Court of Appeal made no order regarding costs in the High Court,

although it did remit the case back to the High Court to determine a separate issue.

12     Wholesale Distributors Ltd v Songle Supermarket Ltd [2014] NZHC 2548 at [85].

13     Wholesale Distributors Ltd v Songle Supermarket Ltd [2014] NZCA 565, (2014) 16 NZCPR 14 at

[38].

14     Americhip Inc v Dean [2014] NZHC 450 at [73].

15     Americhip Inc v Dean [2014] NZCA 380, [2014] NZAR 1137 at [26].

[18]     Americhip subsequently sought costs in the High Court on the application that had come before Ellis J.  Katz J considered that costs in the High Court remained at large, given that the Court of Appeal had quashed Ellis J’s order as to costs and she awarded  costs to Americhip.   I accept Ms McCartney’s  submission that Katz J determined those costs in the absence of a direction from the Court of Appeal that the High Court should do so.  Again, however, the original order as to costs in the High Court had been quashed and Katz J was considering costs on an interlocutory matter.

Conclusion

[19]     In the circumstances that arise I am not satisfied that I have jurisdiction to make the order Mrs N seeks.  I consider that the earlier order that I made stands until it is quashed by the Court of Appeal.   Had I been persuaded otherwise, I would have awarded costs to Mrs N on the basis that she should have succeeded before me, although I may have raised an issue as to the quantum sought.

[20]     I dismiss Mrs N’s application for costs accordingly.

Peters J