Taylor aka Okan v Taylor-Davies - [2018] NZHC 2048

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-0075

[2018] NZHC 2048

IN THE MATTER of an appeal pursuant to s 124 District Court Act 2016

BETWEEN

MARTIN SCOTT TAYLOR ALSO KNOWN AS TARADIVYAH OKAN

Appellant

AND

ROSEMARY LOUISE TAYLOR-DAVIES

First Respondent

MICHAEL JONATHAN DINEEN MARTIN SCOTT TAYLOR (AKA TARADIVYAH OKAN) WILLIAM DAVID CLARK REES AND LAURELIN MERETH OKAN as

executors in the Estate of PATRICIA PRUDENCE TAYLOR

Second Respondents

Hearing: On the papers

Counsel:

P J Stevenson and R McLeod for the Appellant C Fisher for the First Respondent

S Barker for the Second Respondents
C Tataru for the Beneficiaries who have filed notice of intention to appear

Judgment:

10 August 2018

COSTS JUDGMENT OF MUIR J

This judgment was delivered by me on Friday 10 August 2018 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:…………………………

Counsel/Solicitors:
P Stevenson, Barrister, Auckland R McLeod, R McLeod & Associates, Auckland C Fisher, Fortune Manning, Auckland S Barker, Buddle Findlay, Wellington
C Tataru, Simpson Grierson, Auckland

TAYLOR v TAYLOR-DAVIES [2018] NZHC 2048 [10 August 2018]

[1] The first respondent applies for costs in circumstances where, as a result of the appellant’s failure to make timely payment of security, his appeal from the District Court was abandoned by operation of law.1 Submissions in opposition and reply have been filed.

[2] That failure to make payment was only identified (by Registry staff) shortly before the hearing of the appeal. By that time over four months had elapsed since the due date during which period the parties had:

(a)Sought and obtained orders that the original hearing date for the appeal be vacated and a new date allocated; and

(b)prepared and filed submissions on the appeal.

[3] When the failure was notified to counsel for the appellant, the appellant’s initial instructions were to apply for an extension of time to bring the appeal. I indicated that, in the event of consent to such application, I would continue to hear the appeal on the scheduled date (7 August 2018). Ultimately, the appellant decided not to proceed with such an application.

[4]The respondent now seeks costs on a 2B basis for the following steps:

Step Narration Allocated days Costs

53 Commencement of response to appeal 0.5 $1,115.00

56 Preparation of written submissions 3.0 $6,690.00

Total $7,895.00

[5] The application is premised on what are stated to be “wasted costs” reflecting the approach adopted by Heath J in analogous circumstances in Graham v Mills.2

1 District Courts Act 2014, s 126(3). See generally Seimer v Heron [2011] NZSC 133 at [38] and [39]. The second respondents took no steps in relation to the appeal.
2 Graham v Mills [2006] NZFLR 282. In that case his Honour held that there was a discretion under r 6 to extend time for payment of security but declined to exercise it. Steps had in the interim been taken. His Honour’s recognition of a discretion to…

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.

Keep reading for free

Create a free CaseChat account to read Taylor aka Okan v Taylor-Davies and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] NZHC 2048
Decision Date: 10 August 2018

CaseChat Overview and Summary

The case of Taylor aka Okan v Taylor-Davies involves a costs application by the first respondent, Rosemary Louise Taylor-Davies, against the appellant, Martin Scott Taylor, who is also known as Taradivyah Okan. The appeal from the District Court was abandoned due to the appellant's failure to make timely payment of security, which was identified shortly before the hearing of the appeal. The first respondent seeks costs on a 2B basis for the steps taken in response to the appeal, which include the commencement of the response to the appeal and the preparation of written submissions. The appellant does not oppose the costs sought in relation to the commencement of the response but submits that the costs for the preparation of submissions should be reduced by 50 per cent.

The legal issues in this case revolve around the court's discretion to award costs and the principles that govern the exercise of that discretion. The appellant argues that the first respondent should not be entitled to full costs because she could have avoided incurring those costs by making a simple telephone inquiry. The court must balance the principle of predictability and expeditiousness in the determination of costs with the need for "robust justice" in the context of costs. The court must also consider whether the steps taken by the first respondent were necessary and whether the appellant's failure to make timely payment of security was a result of his own actions.

The court accepts that the first respondent could have avoided incurring some of the costs by making a simple telephone inquiry but ultimately decides to exercise its discretion to reduce the costs by 50 per cent. The court considers that the appellant's failure to make timely payment of security was a result of his own actions and that the first respondent's steps were necessary to respond to the appeal. The court also notes that the appellant's submission involves an invitation to hold the first respondent at least part responsible for the wasted costs that occurred. The court decides to exercise its residual discretions under rr 14.1 and 14.7 to reduce costs, applying the element of "robust justice" often necessarily called upon in the costs context.

The court allows costs in favour of the first respondent in the amount of $4,460.00. This amount represents a 50 per cent reduction in the costs sought by the first respondent, reflecting the court's exercise of its discretion to balance the principles of predictability and expeditiousness in the determination of costs with the need for "robust justice" in the context of costs. The court's decision demonstrates the importance of the appellant's responsibility to make timely payment of security and the need for parties to take necessary steps to respond to appeals in a timely and efficient manner.

Orders