Van Wijk v Westra - [2019] NZHC 1840

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2019-463-0005

[2019] NZHC 1840

BETWEEN
PAULINE VAN WIJK

Appellant

AND

ERIK JOHN WESTRA

Respondent

On the papers: at Rotorua

Judgment:

2 August 2019

JUDGMENT OF POWELL J

[Costs]

This judgment was delivered by me on 2 August 2019 at 10 a.m. pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors: Tompkins Wake, Rotorua
Holland Beckett Law, Rotorua

Copy for: Appellant

VAN WIJK v WESTRA [2019] NZHC 1840 [2 August 2019]

[1] The respondent, Erik Westra, seeks costs against the appellant, Pauline van Wijk, after Ms van Wijk discontinued her appeal against a Family Court parenting order after legal aid was refused.

[2] Mr Westra seeks costs on a 2B basis on both the appeal and the application for costs. Ms Ambler, for Mr Westra, notes various procedural irregularities at the time the appeal was filed by Ms van Wijk. She goes on to submit it was not reasonable for Ms van Wijk to bring or continue the appeal, and that her conduct prior to the proceeding commencing was unreasonable. As a result, Mr Westra seeks $4,014.00 on the appeal itself and a further $1,115.00 plus the sealing fee of $446.00 on the application for costs.

[3] In response, Ms van Wijk does not take issue with the calculation but denies unreasonably commencing and prosecuting the appeal noting that it was only abandoned when she was not able to access legal aid. On the contrary she submits that the Family Court orders were contradictory and submits that an award of costs will lead to significant hardship, on top of other significant debts she is currently paying off.

Legal principles

[4] The starting point for costs in this case is r 15.23 of the High Court Rules 2016 which provides:

Unless the defendant otherwise agrees or the court otherwise orders, a plaintiff who discontinues a proceeding against a defendant must pay costs to the defendant of and incidental to the proceeding up to and including the discontinuance.

[5] The authorities make it clear that the Rule establishes a presumption for costs on a discontinuance which may be displaced if the Court finds there are circumstances which make it just and equitable that costs should not be paid.1

1 McGechan on Procedure (online loose-leaf edition) at [HR15.23.01], citing Krama Colour Prints Ltd v Tridonicatco NZ Ltd [2008] NZCA 150, (2008) 18 PRNZ 973; FM Custodians Ltd v Pati [2012] NZHC 1902 at [10]-[12] and Opus International Consultants Ltd v Colac Bay Vision Ltd [2015] NZHC 1782, [2015] NZCCLR 19 at [20]-[24].

[6]In addition, as Ms Ambler notes, generally:2

(a)The Court will not consider the merits of the respective cases, unless they are so obvious that they should influence the costs outcome.

(b)The Court will consider the reasonableness of the stance of both parties: whether it was reasonable for the plaintiff to bring and continue the proceeding, and for the…

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.

Continue reading Van Wijk v Westra

Details

AGLC: Van Wijk v Westra [2019] NZHC 1840
Case: [2019] NZHC 1840
Decision Date: 2 August 2019

CaseChat Overview and Summary

Erik John Westra sought costs against Pauline van Wijk after she discontinued her appeal against a Family Court parenting order when legal aid was refused. Westra sought costs on a 2B basis on both the appeal and the application for costs. Van Wijk denied unreasonably commencing and prosecuting the appeal, stating that it was only abandoned when she could not access legal aid. The court considered the reasonableness of both parties' stance and the reason for discontinuance. Given the procedural defects, the lack of significant additional costs to Westra, and the incomplete information provided by van Wijk as to her ability to pay, the court fixed a modest award of costs at $2,946.00.

The court examined the reasonableness of van Wijk's conduct prior to the commencement of the appeal, noting that it was the Family Court's judgment that precipitated the appeal and not van Wijk's conduct. The court also considered the merits of the respective cases and whether they were so obvious that they should influence the costs outcome. The court found that the merits were not so clear cut as to influence the costs outcome. The procedural defects identified by Westra did not result in additional costs to him, and the appeal was proceeding towards a hearing in an orderly fashion until the discontinuance was filed. The court noted that the possibility of a discontinuance was foreshadowed when van Wijk's legal representative accepted instructions on her behalf, noting his appointment was conditional on legal aid being granted.

The court took into account the incomplete information provided by van Wijk as to her ability to pay an award of costs, as well as the difference between whether costs should be fixed and whether the award will be enforced. The court considered it appropriate to fix a modest award of costs at $2,946.00, plus the sealing fee of $446.00.

Van Wijk is to pay Westra the sum of $2,946.00.

Orders