Van Selm v Van Selm

[2015] NZHC 2139

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2014-419-000170 [2015] NZHC 2139

UNDER

the Property Relationships Act 1976

IN THE MATTER OF

the Estate of ELIZABETH PARETUARANGI ORMSBY

BETWEEN

JACQUELINE ANNE VAN SELM AND PUAWAI ORMSBY AS TRUSTEES OF THE ESTATE OF JACK ORMSBY Appellants

AND

JAKE VAN SELM AS TRUSTEE OF THE ESTATE OF ELIZABETH PARETUARANGI ORMSBY

First Respondent

ALAN ORMSBY Second Respondent

Hearing:	On the papers
Judgment:	4 September 2015

COSTS JUDGMENT OF DUFFY J

This judgment was delivered by me on 4 September 2015 at 2.00 pm pursuant to

Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors:

Norris Ward McKinnon, Hamilton

Koning Webster Lawyers, Papamoa

VAN SELM & ORMSBY v VAN SELM & ORMSBY [2015] NZHC 2139 [4 September 2015]

[1]      On 1 April 2015 I delivered a judgment1  in which I found in summary that there was no appealable error regarding the Family Court’s decision to award costs to the second respondent on a 3C basis.2   However, I did find that there may be good grounds for reducing the quantum of the costs.3   Accordingly, I gave the parties the opportunity to file submissions on whether the category 3C quantum should be discounted.

[2]      The parties have taken the opportunity to file further material on the question of the quantum of the costs award in the Family Court.

[3]      The appellants have filed a memorandum and a supporting affidavit from Gillian Spry, the solicitor who has acted for the estate of Jack Ormsby since the proceedings were first issued.

[4]      Ms Spry deposes that the time records of the firm of solicitors which acted for the appellants were not particularised to the extent that she could point to entries specifically identifying work spent on the subject on which the second respondent made a late concession in the appellants’ favour (the Fonterra shares).  However, her best estimate of costs that should be allocated to the work required in relation to the Fonterra shares was $5,000 plus GST.   She says that there were no specific disbursements relating to that subject.

[5]      The second respondent has had an opportunity to contradict the appellants’ submission and evidence in support.  He points to the lack of specificity in the time records  and  contends  that  what  is  recorded  relates  to  separate  circumstances involving the Fonterra shares.

[6]      However, Ms Spry has explained the lack of specificity in the time records.  I

accept her explanation.  The fact that specific records identifying the Fonterra shares as a stand-alone issue were not made does not necessarily mean that little or no work

1      Van Selm v Van Selm [2015] NZHC 641

2 At [64].

3 At [65].

to disbelieve it.  Further I consider that the concession reveals a measure of success on the part of the appellants, which given that it was made so close to the trial should be reflected in some adjustment to the costs award that was made in the Family Court.

[7]      Accordingly, I am satisfied that the costs awarded in the Family Court should be reduced by $5,000 plus GST.

[8]      It follows that the appellants have had some limited success in their appeal, which merits recognition when it comes to the question of costs on the appeal

[9]      The appellants argued that costs should lie where they fall.   The second respondent points to the success that it enjoyed and seeks costs at category 2B.

[10]     This is not a case where each opposing party has enjoyed an equal or almost equal measure of success.   Accordingly, I consider that the second respondent is entitled to an award of some costs.  Ordinarily an award of scale costs would follow. However, here I consider some adjustment is necessary to reflect the limited success that the appellants enjoyed.

[11]     The second respondent seeks costs on the appeal to this Court on a 2B basis plus disbursements to be fixed by the Registrar.  I consider as a starting point that he is entitled to an award of costs on a 2B basis, but that there should then be some adjustment  to  reflect  the  appellants’  success.     I  consider  that  this  can  be accomplished by discounting the 2B costs awards on the appeal by 10%.

Result

[12]     The 3C costs awarded in the Family Court are reduced by $5000 plus GST. [13]     The second respondent is entitled to an award of costs at category 2B less

10% on this appeal.

Registrar.