Steinbauer v Steinbauer

[2022] NZHC 1976

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-117

[2022] NZHC 1976

BETWEEN

MATTHEW VINCENT STEINBAUER

Applicant

AND

KURT RITCHIE STEINBAUER

Respondent

On the Papers

Appearances:

Applicant in person

A R Davie for the Respondent

Judgment:

11 August 2022

COSTS JUDGMENT OF GWYN J

[1]    Matthew Steinbauer’s application for a stay of execution of judgment came before me on 11 July 2022. The application related  to  an  order  made  by  Associate Judge Johnston granting summary judgment to Kurt Steinbauer.1 The order was for the possession of a property at Raumati Beach, Wellington. The order was to come into effect on 3 June 2022.

[2]    Matthew has filed a notice of appeal in the Court of Appeal and in this Court sought a stay of the Associate Judge’s judgment pending determination of the appeal.

[3]    In my judgment dated 12 July 2022 I granted a stay of execution for a period of two months.2

1      Steinbauer v Steinbauer [2022] NZHC 911.

2      Steinbauer v Steinbauer [2022] NZHC 1644, at [32] (judgment).

STEINBAUER v STEINBAUER (Costs) [2022] NZHC 1976 [11 August 2022]

[4]    I did not determine costs at the time of the interlocutory application as required by r 14.8 of the High Court Rules 2016 (the Rules), not having heard submissions from the parties.

[5]    Kurt has now sought costs on the application, noting that Matthew was in effect unsuccessful in his stay application, but the Court had granted the two months stay on “compassionate grounds”.

[6]    Matthew opposes Kurt’s application for costs and himself seeks costs of $500 in relation to the application.

Principles in determining costs

[7]    Under Part 14 of the Rules costs are at the discretion of the Court.3 However, r 14.2 sets out the principles to apply in determining costs. Amongst those principles is that the party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds4 – that is, that costs follow the event.

[8]The question in this case is who is the successful party.

Discussion

[9]    I accept Kurt’s submission that he was in substance the successful party on the application. In assessing the factors to be considered in granting a stay, I noted that a stay would injuriously affect Kurt in that he is not able to carry out his duties as the executor of the relevant estates in the meantime, and that there is a real and continuing effect on third parties.5 In this costs application, Kurt again refers to the cost to him and to third parties of granting the stay, including because during that period Matthew remains in the property rent-free. I also questioned whether Matthew would prosecute his appeal promptly.6

3      Rule 14.1.

4      Rule 14.2(1)(a).

5 Judgment, above n 2 at [28].

6      At [30]-[31].

[10]   However, notwithstanding that the balance under r 20.10 of the Rules favoured Kurt, because of Matthew’s state of health and the need for him to find an alternative place to live, I granted the two month stay.7

Result

[11]   Having regard to all those factors I conclude that Kurt is entitled to a costs order on a 2B basis.

Gwyn J

Solicitors:

Treadwells,  Wellington

7 Judgment, at [32].