Thomas v Kane

[2021] NZHC 1185

NOTE: PURSUANT TO S 169 OF THE FAMILY PROCEEDINGS ACT 1980, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2020-404-2206

[2021] NZHC 1185

IN THE MATTER OF

An appeal from the Family Court at Auckland

BETWEEN

THOMAS

Appellant

AND

KANE

Respondent

Hearing:	On the papers
Counsel:	Appellant in person Respondent in person
Judgment:	26 May 2021

JUDGMENT (COSTS) OF CAMPBELL J

This judgment was delivered by me on 26 May 2021 at 11:00 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

THOMAS v KANE [2021] NZHC 1185 [26 May 2021]

[1]                 Mr Thomas appealed against a decision of Judge Mahon in the Auckland Family Court transferring a family violence proceeding to the Hamilton Family Court.1 I heard the appeal on 22 April 2021 (together with a related appeal by Mr Thomas).

[2]                 During the hearing Mr Thomas withdrew this appeal. I therefore dismissed the appeal. I said that Ms Kane was entitled to costs. I directed the parties to file memoranda if they could not agree the amount of costs.

[3]                 The parties could not agree costs. Ms Kane filed a memorandum on 7 May 2021. She seeks costs in the modest sum of $1,365.05. The sum is modest because at times in this proceeding Ms Kane represented herself. She cannot, and does not, claim costs for the steps when she represented herself. She claims costs merely for the steps when she was represented. These are the steps at items 53 (commencement of response to appeal), 55 (preparation of case on appeal) and 57 (appearance at the hearing) of Schedule 3 to the High Court Rules 2016.

[4]                 The proceeding was previously categorised as 2B. On that basis, the three items claimed by Ms Kane amount to $4,182.50. Ms Kane seeks the much lower sum of $1,365.05, as she says that is the actual cost she incurred.

[5]                 Mr Thomas filed a memorandum in response on 14 May 2021. Large parts of his memorandum address the substantive merits of, or reasons for him bringing, his appeal. Those matters are irrelevant to costs. Mr Thomas having discontinued his appeal, the presumption is that Ms Kane is entitled to costs: r 15.23. That presumption is sometimes rebutted by showing the discontinuance occurred because the proceeding achieved its objective. But the parts of Mr Thomas’s memorandum to which I refer do not attempt to show that.

[6]                 In the balance of his memorandum Mr Thomas asks me to strike out Ms Kane’s memorandum as irregular. He submits her memorandum is irregular because Ms Kane has a solicitor on the record, and Ms Kane prepared and filed the memorandum herself, without first filing and serving a notice of change of representation under r 5.40.

1      With the parties’ consent, I have used fictitious names in this judgment.

[7]                 There is no merit to Mr Thomas’s submission. If Ms Kane’s solicitor had prepared and filed the memorandum, Ms Kane would be entitled to costs from Mr Thomas for that memorandum. By preparing and filing the memorandum herself, Ms Kane has saved Mr Thomas that cost.

[8]                 I find that Ms Kane is entitled to costs at least for items 53 and 57. I doubt that Ms Kane is entitled to costs for item 55, as it appears that Mr Thomas prepared the case on appeal. But I do not have to decide that. Even on items 53 and 57, costs at 2B would exceed the actual costs that she claims.

[9]Mr Thomas is therefore to pay costs of $1,365.05 to Ms Kane.

Campbell J