Stuart v Stoneham - [2023] NZHC 3867

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-000334

[2023] NZHC 3867

IN THE MATTER OF the Property (Relationships) Act 1976

BETWEEN

NEIL GORDON STUART
Appellant

AND

ANNETTE LISA STONEHAM

Respondent

Hearing: 26 September 2023

Appearances:

SR Mitchell KC for the Appellant

SJ McCarthy KC for the Respondent

Judgment:

21 December 2023

JUDGMENT OF FITZGERALD J

This judgment was delivered by me on 21 December 2023 at 4 pm, pursuant to Rule 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar Date……………

Solicitors/Counsel:
Garry Pollak & Co, Auckland SJ McCarthy KC, Auckland SR Mitchell KC, Auckland

STUART v STONEHAM [2023] NZHC 3867 [21 December 2023]

Introduction

[1] Mr Stuart appeals against the 24 January 2023 costs decision of Judge B R Pidwell in the Family Court,1 which followed the Judge’s determination of proceedings commenced by Ms Stoneham (Mr Stuart’s former wife) for division of relationship property pursuant to the Property (Relationships) Act 1976 (the Act), and her claim pursuant to s 182 of the Family Proceedings Act 1980 (FPA).2

[2] The Judge awarded costs to Ms Stoneham after finding that she was largely successful in her claims. Costs were fixed on 2B scale basis,3 and reduced by 20 percent to reflect that Ms Stoneham was only partly successful in the quantum of some of her claims. The Judge also awarded uplifted costs on the step of appearance of Ms Stoneham’s principal counsel at the Family Court hearing.4

[3] This resulted in a total costs award of $82,000 in favour of Ms Stoneham. The Judge also ordered that Mr Stuart pay half of the fees of the experts called on behalf Ms Stoneham (an accountant and valuer), and half of the fixture fee, totalling
$34,084.17.

[4] Mr Stuart appeals against the Judge’s decision primarily on the basis that given Ms Stoneham’s limited success and the nature of the proceedings, the proper outcome was for costs to lie where they fell. In the alternative, Mr Stuart says that costs should have been awarded to each party on an “issue-by-issue” basis, measured against that party’s success on that issue. If the appeal is successful on this basis, Mr Stuart says the matter ought to be remitted to the Family Court for determination. Further and in any event, Mr Stuart says the Judge was wrong to uplift the costs to reflect the fact he was self-represented at the hearing, the discount for Ms Stoneham’s limited success was too small, and the Judge was wrong to order that he pay half of the expert fees incurred by Ms Stoneham.

1      Stoneham v Stuart [2023] NZFC 520 [Costs Decision].
2      The two proceedings were consolidated and heard together.
3      Save for one or two steps being awarded on a scale 2C basis.
4      To reflect that Mr Stuart was self-represented at the hearing, with the result that the Judge requested Ms Stoneham’s counsel to, essentially, put Mr Stuart’s case to his own witnesses to ensure Ms…

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 Stuart v Stoneham

Details

AGLC: Stuart v Stoneham [2023] NZHC 3867
Case: [2023] NZHC 3867
Decision Date: 21 December 2023

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Stuart v Stoneham involved a significant property dispute between the former spouses, Neil Stuart and Annette Stoneham, following their lengthy marriage and subsequent separation. The proceedings, which were complex and protracted, included claims under the Property (Relationships) Act 1976 and the Family Proceedings Act 1980. The substantive judgment determined various property interests, including inheritances and partnership shares, largely in favor of Ms. Stoneham, who sought an equal division of the property. The Family Court awarded Ms. Stoneham costs on a 2B scale, reduced by 20 percent due to her partial success in certain claims, and additionally awarded her uplifted costs for the appearance of her principal counsel.

Mr. Stuart appealed the costs decision, arguing that costs should have either lain where they fell or been awarded on an issue-by-issue basis, given the mixed success of both parties. He also contested the 20 percent discount applied to Ms. Stoneham’s costs and the 25 percent uplift awarded for the appearance of Ms. Stoneham’s counsel. The appeal hinged on whether the Family Court judge properly exercised her discretion in awarding costs, applying the modern approach to costs in relationship property proceedings, which generally aligns with the civil costs regime.

The court found that the Family Court judge correctly applied the modern approach to costs in relationship property proceedings and correctly determined that Ms. Stoneham was the predominantly successful party overall. However, the court held that the 20 percent discount applied to Ms. Stoneham’s costs was inadequate given her significant under-recovery on key claims. The court also found the 25 percent uplift for the appearance of Ms. Stoneham’s principal counsel to be inappropriate. The appeal was thus allowed in part, reducing the discount to 30 percent and removing the uplift for the appearance of Ms. Stoneham’s counsel. The court encouraged the parties to agree on costs for the appeal, suggesting that an appropriate outcome might be for costs to lie where they fell.

Orders