Thompson v Public Trust

[2014] NZHC 2434

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2013-485-1511 [2014] NZHC 2434

IN THE MATTER OF

an appeal under s 39 of the Property

(Relationships) Act 1976

BETWEEN

ANNETTE COLLEEN THOMPSON Appellant

AND

PUBLIC TRUST as administrator of the Estate of SCOTT PHILIP HILLMAN First Respondent

CRYSTAL PAM COSTELLO Second Resondent

On the papers
Counsel	A G Gray for appellant B J J Sheehan for second respondent
Judgment:	3 October 2014

COSTS JUDGMENT OF CLIFFORD J

[1]      I refer to the memoranda filed.

[2]      I acknowledge that the general principle in relationship property proceedings used to be that both parties bear their own costs, because the resolution of these disputes is “something of benefit to both of them and in a sense neither should be regarded as the winner or the loser”.1   However, there are now numerous High Court authorities to the effect that costs should follow the event and be dealt with in

accordance with the normal civil rules.2     As Keane J observed in a 2012 decision

1      Gerbic v Gerbic (1991) 8 FRNZ 518 at 542; de Boyette v de Boyette (1993) 10 FRNZ 405 (HC)

at 406.

2      Anderson v Anderson HC New Plymouth CIV-2004-443-25, 16 July 2004  at [33]; FT v JML [2012] NZHC 1388 at [29]; SB v DC HC Auckland CIV-2011-404-1005, 4 October 2011; FT v JML [2012] NZHC 2233 at [9]; Radisich v Taylor HC Auckland CIV-2007-404-7578, 16 April

2008 at [22]-[23].

THOMPSON v PUBLIC TRUST AND COSTELLO [2014] NZHC 2434 [3 October 2014]

“These days the winning party in property relationship cases has a more recognised right to an award on the principle that costs follow the event than was so even a few years ago.”3

[3]      The general costs principles applicable to civil appeals to the High Court should therefore apply.  Rule 14.1 gives the Court a discretion as to costs but that discretion is fettered by the specific costs rules in rr 14.2 to 14.10.4  Those rules,

pertinently include that costs:5

(a)        follow the event;

(b)should reflect the complexity and significance of the proceeding and be assessed by applying the appropriate daily recovery rate;

(c)       should not exceed the costs actually incurred by the party claiming costs; and

(d)should    be    determined,    as    far    as    possible,    predictably    and expeditiously.

[4]      The Court may refuse or reduce costs where a good reason exists to depart from the above principles.6 Such reasons include that the party claiming costs contributed unnecessarily to the time or expense of the proceeding; that the party claiming costs did not succeed on a particular issue; and that the issues at stake were of little significance.  No such consideration arises here.

[5]      Subject to the two matters I now mention, Mrs Thompson is entitled to a costs order on a 2B basis for the appeal. The two matters are:

(a)       The appeal was, in the circumstances all are familiar with, adjourned when first called.  The proceedings that morning did occupy some

3      FT v JML, above n 2, at [29];

4      Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 285 at [7] and

[16].

5      High Court Rules, r 14.2.

6      High Court Rules, r 14.7.

time, but I do not think they should be reflected in costs. Accordingly, costs are to be calculated on the basis of a half day appeal.

(b)Secondly, costs are not to exceed the amount Mrs Thompson will be required to pay to Legal Aid.  I do not know what that amount is.

[6]      I trust the parties can now resolve matters.

“Clifford J”

Solicitors:

Buchanan Gray, Wellington.

ARL Lawyers, Lower Hutt.