Waxman v Crouch

[2016] NZHC 2913

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-000228 [2016] NZHC 2913

BETWEEN

DEBORAH WAXMAN

Appellant

AND

MARK CROUCH Respondent

Hearing:	On the papers
Appearances:	W G C Templeton for Appellant T A Simmonds for Respondent
Judgment:	2 December 2016

JUDGMENT NO 2 OF PALMER J (Costs)

This judgment is delivered by me on 2 December 2016  at 3.00 pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Counsel:

W G C Templeton, Barrister, Auckland

T A Simmonds, Barrister, Auckland

WAXMAN v CROUCH NO. 2 – COSTS [2016] NZHC 2913 [2 December 2016]

[1]      In my judgment of 29 August 2016 I declined the appeal in part and upheld it in part.1   I dismissed Ms Waxman’s appeal of the refusal to grant a harassment order but I quashed the award of indemnity costs against her and substituted an ordinary costs order.  I indicated I was inclined to let costs of the appeal lie where they fell as the parties enjoyed a relatively equal measure of success but, if the parties could not agree, I gave leave to file memoranda.2  They did so.

[2]      The appellant, Ms Deborah Waxman, says she succeeded in two of three grounds of appeal.  Ms Waxman submits the judgment overlooked a document filed by Ms Waxman called “Points of Appeal” of 12 May 2016.   A paragraph of that document suggested, contrary to her Notice of Appeal, she was not challenging the dismissal of her original application but only procedural unfairness issues and indemnity costs.  Ms Waxman’s memorandum also, inappropriately and irrelevantly for the issue of costs, takes issue with aspects of the reasoning of the judgment. And it objects to part of the costs award I substituted for the District Court’s award of indemnity costs in upholding part of Ms Waxman’s appeal.  Ms Waxman seeks costs.

[3]      The respondent, Mr Mark Crouch, submits Ms Waxman was unsuccessful in her substantive appeal, her Points of Appeal document does not say what she now says it does and the focus of her appeal was not what she now says it is.  He submits he has incurred costs in opposing Ms Waxman’s appeal and seeks costs in his favour.

[4]      The submissions of both parties confirm my original inclination that costs should lie where they fall for the appeal.  Based on a realistic appraisal of the end result, I consider the parties enjoyed  a relatively equal measure of success  and failure.3   I decline to make the orders sought.

Palmer J

1      Waxman v Crouch [2016] NZHC 2004.

2 At [50].

3      Packing in Ltd (in liq) formerly known as Bond Cargo Ltd v Chilcott (2004) 9 NZCLC 263, (2003) 16 PRNZ 958 (CA) at [6].