Supra v Whitmore

[2020] NZHC 1073

NOTE: PURSUANT TO

S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

https://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-002498

[2020] NZHC 1073

IN THE MATTER OF

An appeal against a decision of the Auckland Family Court at Auckland dated 14 October 2019

BETWEEN

NATALIA SUPRA

Applicant

AND

GAVIN RICHARD WHITMORE

Respondent

On the papers:	At Auckland
Date of Judgment:	22 May 2020

JUDGMENT OF POWELL J

[Costs]

This judgment was delivered by me on 22 May 2020 at 3.30 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

SUPRA v WHITMORE [2020] NZHC 1073 [22 May 2020]

[1]        This is an application for costs by the respondent, Gavin Whitmore, after the applicant, Natalia Supra, abandoned her application for leave to appeal.

[2]        Ms Supra had sought leave to appeal a decision of the Family Court that had made interim orders under The Care of Children Act 2004.1 An application for leave to appeal, as well as an application for stay, was  filed  simultaneously  in  the  Family Court and so in the first instance the application in the High Court was adjourned, pending determination by the Family Court.

[3]        The Family Court subsequently declined both the application for leave to appeal and the application for stay.2 Following receipt of the Family Court judgment Ms Townsend, for Mr Whitmore, filed a memorandum disputing the High Court’s jurisdiction to entertain an application for leave once leave had been declined in the Family Court. The application was  adjourned  to  enable  counsel  for  Ms  Supra, Mr Locke, to confirm  the  position,  which  he  subsequently  did  and  withdrew  Ms Supra’s application in this Court prior to the next call of the application.

The costs application

[4]Ms Townsend seeks costs on a 2B basis as follows:3

Item	At Rate $2,390	Days	Total
53    Commencement   of response   to    appeal   or cross-appeal	0.5	$1,145.00
11 Filing memorandum for first or subsequent case management conference or mentions hearing	(24     February 2020)	0.4	$956.00
22   Filing    Interlocutory Application (for costs)	(2 April 2020)	0.6	$1,434.00
Totals:	1.5	$3,535.00

1      Supra v Whitmore [2019] NZFC 8143.

2      Supra v Whitmore [2020] NZFC 379.

3      Mr Whitmore sought costs on the basis of a daily recovery rate of $2,230. As however the memoranda were filed on or after August 2019 – the daily recovery rate was $2,390 not $2,230 and the amounts claimed have been adjusted accordingly.

[5]        Mr Locke submits that costs should lie where they fall on the basis that the application for leave was filed in the High Court “as a result of the misapprehension with the legal position” and was “withdrawn as soon as practicable after the issue was raised by Ms Townsend”.

[6]        In the event that this Court determines costs are payable, Mr Locke submits it should be on a 2A basis being “proceedings of a straightforward nature able to be conducted by counsel considered junior in the High Court”,4 and that therefore no more than 0.4 days for the two memoranda filed by Ms Townsend would be appropriate, a total sum of $636.00.

Discussion

[7]        There is no reason in this case why costs should lie where they fall. On contrary, the summary set out above shows that costs are properly payable, a “misapprehension” of the law leading to the filing of unviable proceedings provides no basis for not awarding costs.

[8]        Likewise, it is difficult to see that Band 2A is appropriate given Mr Locke has elsewhere submitted that the jurisdictional issue raised by Ms Townsend was technical and required “considerable research” on his part. I therefore conclude that costs on a 2B basis are appropriate.

[9]        With regard to the amounts claimed by Ms Townsend, I am however satisfied that no costs are payable for Item 53 “Commencement of response to appeal or cross- appeal” given, as Mr Lock notes, the appeal was in fact never filed. Likewise, there has in fact been no application filed by Ms Townsend, simply a memorandum requesting that costs following the abandonment of the application for leave.

[10]      In the circumstances I accept Mr Locke’s submission that costs are properly payable for the two memoranda filed by Ms Townsend; the memorandum filed on  24 February 2020 raising the jurisdictional issue, together with the memorandum seeking costs. On a 2B basis 0.4 days is allowed for each memorandum which I

4      High Court Rules 2016, r 14.3(1).

consider fairly reflects the overall position, including the other email correspondence between the parties. Based on a daily recovery rate of $2,390 this means that the total amount payable is $1,912.00.

Decision

[11]Ms Supra is to pay Mr Whitmore costs in the sum of $1,912.00.

Powell J