Washbourn v Washbourn
[2021] NZHC 1888
•26 July 2021
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE
CIV-2021-476-000009
[2021] NZHC 1888
BETWEEN CYNTHIA RUTH WASHBOURN
Plaintiff
AND
PETER ROBERT WASHBOURN
Defendant
Hearing: (Determined on the Papers) Counsel:
L M Glover for Plaintiff
P R Washbourn, self-represented Defendant
Judgment:
26 July 2021
JUDGMENT OF ASSOCIATE JUDGE PAULSEN
(Costs)
This judgment was delivered by me on 26 July 2021 at 11.00 am pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
WASHBOURN v WASHBOURN [2021] NZHC 1888 [26 July 2021]
[1] The plaintiff and defendant were married. Following the breakup of their marriage they obtained consent orders for the resolution of relationship property disputes in the Family Court at Timaru on 12 December 2018 (the consent orders).
[2] It appears that since the consent orders were obtained things have not gone smoothly between the parties. In April 2021, the plaintiff commenced summary judgment proceedings against the defendant in this Court for the surprisingly small sum of $4,443.43. This is said to be a balance owing under the consent orders as interest on an equalising payment to be made by the defendant to the plaintiff, less certain amounts the plaintiff accepts were due to the defendant for legal costs and rates.
[3] The defendant did not accept the plaintiff’s claim. Nevertheless, on 10 June 2021 he made payment to the plaintiff of the sum claimed. In an email to the plaintiff of the same date the defendant stated the payment was “subject to you dropping the action”. He also indicated it was his intention to bring his own claim to recover sums owed to him.
[4] The application for summary judgment was to come before the Court on 28 June 2021. When the defendant learnt on 24 June 2021 that the plaintiff intended to seek costs against him, he filed a notice opposing costs.
[5] When the application came before me on 28 June 2021, the plaintiff’s counsel withdrew the claim but sought costs. The defendant appeared in person and opposed costs. I directed the filing of submissions. I required the plaintiff’s counsel to particularly address the following issues:
(i)why was the summary judgment application made when there was an existing Court order of 12 December 2018?
(ii)why was such a small claim filed in the High Court?
(iii)the grounds of the defendant’s opposition to costs.
Discussion
[6] Issues of costs are entirely at the discretion of the Court although the discretion is exercised on a principled basis. The plaintiff does not identify the basis upon which costs are sought but I infer it is because she considers she was the winning party and therefore entitled to costs.1 I consider there are special reasons in this case why no costs should be awarded.
[7] As I raised with counsel at the hearing, I did not understand why the plaintiff chose to seek summary judgment based on consent orders of the Family Court. It appeared to me the parties’ rights merged in the consent orders and would be enforceable in the same manner as any other judgment of the Family Court.
[8] The plaintiff’s counsel now advises the plaintiff tried to recover what she claimed was owed to her by civil enforcement through the District Court. Her lawyers were advised by the Civil Enforcement Team of the Ministry of Justice on 26 June 2020 she could not do so because:
This is due to it not being a specific monetary amount and instead, requires the respondent to take an action and imposes an ongoing obligation on the respondent.
[9] Counsel says it was because the option of civil enforcement was not available to the plaintiff that the summary judgment application was made (although not until 10 months later).
[10] On first appearances, the advice from the Civil Enforcement Team appears incorrect. The plaintiff’s claim is for interest under cls 6 and 7 of the consent orders. The principal sum, interest rate and period for which interest is payable are all certain and set out in the consent orders. The amount owing to the plaintiff is a “specific monetary amount”. I can see no reason why the plaintiff could not avail herself of the usual enforcement processes available in the District Court. The plaintiff’s counsel provided no further explanation or analysis.
1 High Court Rules 2016, r 14.2(1)(a) and Shirley v Wairarapa District Health Board [2006] NZSC 63, [2006] 3 NZLR 532 at [19].
[11] However, things become clearer when it is understood that the civil enforcement action taken by the plaintiff in June 2020 was only in part for interest. It was also taken in respect of cl 8 of the consent orders that states:
The respondent shall apply forthwith to the Government Superannuation Fund to divide the relationship property portion of the respondent’s entitlements equally between the parties.
[12] It appears to me that it is almost certainly this clause of the consent orders the Civil Enforcement Team was referring to as not being a “specific monetary amount”. Importantly, there is no reference to cl 8 in the plaintiff’s application for summary judgment. I therefore do not consider the plaintiff is correct that the option of civil enforcement of the consent orders was not available to her.
[13] The plaintiff’s counsel fails to provide any reason why it was considered appropriate to proceed for such a small sum in the High Court. I can see no reason at all for such a claim being made in the High Court. It is not unusual for claims within the District Court jurisdiction to be brought in the High Court but rarely for such a small sum.
[14] As far as the defendant’s grounds of opposition are concerned, the plaintiff’s counsel submits they are incomprehensible and it is her interpretation the defendant is seeking to re-litigate the Family Court matter. I accept the defendant’s submissions are not easy to understand. They also assume a knowledge of the affairs of the parties that I do not have. However, two matters are reasonably clear and relevant to the issue of costs.
[15] First, the papers filed in support of summary judgment are quite inadequate. The information that has been provided by the defendant shows there was a significant history to this proceeding, including correspondence that has passed between the parties. The statement of claim refers to correspondence which was not attached to the very brief affidavit of the plaintiff. The undisclosed correspondence includes letters from the defendant to the plaintiff that contain assertions he has credited the plaintiff for interest and is owed money by the plaintiff. These are matters the plaintiff should have brought to the Court’s attention but did not.
[16] Second, on 10 June 2021 the defendant made payment to the plaintiff of the sum claimed on the basis that the court proceeding would be “dropped”. Despite that the defendant was only advised on 24 June 2021 (some two weeks after the payment was made) that costs were to be sought against him. I consider that while the defendant’s email did not specifically refer to costs, in the circumstances his intention that the payment was to be an end of the matter was sufficiently clear. There is no explanation for either the decision to retain the money and seek costs or for the delay in notifying the defendant that the payment was not accepted on the basis that it was tendered.
Result
[17]The costs between the parties shall lie where they fall.
[18] For completeness, the defendant has asked me to give judgment in his favour for sums he says are owed to him by the plaintiff. I have no power to make any such award in this proceeding.
O G Paulsen Associate Judge
Solicitors:
Timpany Walton, Timaru
Copy to:
P R Washbourn, self-represented Defendant
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