Williams v Scott - [2018] NZHC 1979

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2014-404-555

[2018] NZHC 1979

UNDER The Property (Relationships) Act 1976

BETWEEN

WILLIAMS

Appellant

AND

SCOTT

Respondent

Hearing: On the papers

Appearances:

S Robertson QC for Appellant S Ambler for Respondent

Judgment:

6 August 2018

JUDGMENT OF LANG J

[on costs]

This judgment was delivered by me on 6 August 2018 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

WILLIAMS v SCOTT [2018] NZHC 1979 [6 August 2018]

[1] On 17 October 2014, Faire J delivered a judgment1 (the substantive judgment) allowing in part an appeal against a decision given by Judge McHardy in the Family Court.2 This determined issues relating to the division of relationship property between Ms Scott and Mr Williams.3

[2] Justice Faire subsequently granted Mr Williams and Ms Scott leave to file a second appeal to the Court of Appeal against aspects of the High Court judgment (the leave judgment).4 The Court of Appeal largely upheld the High Court judgment.5 Ms Scott then obtained leave to appeal to the Supreme Court.6 The Supreme Court allowed the appeal and set aside several of the orders made in the High Court and confirmed by the Court of Appeal.7

[3] Justice Faire elected not to determine the issue of costs in this Court until the outcome of the appeal process was known. Costs in this Court therefore remain unresolved. The Supreme Court directed that this Court was to fix those costs having regard to the outcome of the hearing in the Supreme Court.8

[4] The parties have been unable to reach agreement regarding the incidence and quantum of costs payable in this Court. It is therefore necessary for the Court to determine those issues in relation to both the substantive judgment and the leave judgment.

[5] Justice Faire has now retired. As a result, the proceeding has been referred to me as Duty Judge to determine the issue of costs.

1      Williams v Scott [2014] NZHC 2547, [2015] NZFLR 355.
2      Williams v Scott [2014] NZFC 7616.
3      These are not the real names of the parties. Judge McHardy directed that the parties to the proceeding in the Family Court were to be called Mr Williams and Ms Scott. All subsequent judgments have referred to them by these names.
4      Williams v Scott [2014] NZHC 3385.
5      Scott v Williams [2016] NZCA 356, [2016] NZFLR 499.
6      Scott v Williams [2016] NZSC 149.
7      Scott v Williams [2017] NZSC 185, [2018] 1 NZLR 507.
8      Scott v Williams, above n 7, at [275].

A The substantive judgment Issues

[6]I consider the following issues need to be determined:

1.Who is entitled to costs as the successful party in this Court?

2.Should any allowance be made to reflect issues on which the unsuccessful party succeeded?

3.Should the successful party receive an award of increased costs?

4.What is the appropriate cost categorisation…

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 Williams v Scott

Details

AGLC: Williams v Scott [2018] NZHC 1979
Case: [2018] NZHC 1979
Decision Date: 6 August 2018

CaseChat Overview and Summary

Williams v Scott was an appeal against the division of property between the parties following their separation. The substantive appeal, heard by Justice Faire, was largely unsuccessful for the appellant, Mr Williams, who had appealed the decision of the Family Court. The Court of Appeal largely upheld the High Court decision. Ms Scott then appealed to the Supreme Court, which allowed the appeal and set aside several of the orders made in the High Court and Court of Appeal. The issue before the High Court, sitting as the Duty Judge, was to determine the costs of the appeal in the light of the Supreme Court's decision. The court held that Ms Scott was the successful party in relation to the substantive appeal. Mr Williams was the successful party in relation to the cross-appeal. Any award of costs in favour of Ms Scott should be reduced by 15 per cent to reflect the issues on which Mr Williams succeeded in the substantive appeal. The court declined to award increased costs under the heads of pursuing arguments that had no merit, failing without reasonable justification to accept an offer of settlement, and the inability of Ms Scott to claim GST input deductions. The appeal was categorised as a category 3 proceeding for costs purposes. Ms Scott was entitled to costs calculated on a category 3 basis together with disbursements as fixed by the Registrar in relation to the substantive appeal. Mr Williams was entitled to costs calculated on a category 3 basis together with disbursements as fixed by the Registrar in relation to the cross-appeal. In relation to the leave judgment, Ms Scott was the successful party in relation to the issues determined by the leave judgment. She is therefore entitled to costs calculated on a category 3 basis together with disbursements as fixed by the Registrar in relation to all steps taken in relation to the hearing that led to the leave judgment.

The court reserved leave to determine the quantum of costs if the parties were unable to agree. If either party did not agree with the Registrar's decision, leave was reserved to refer the matter back to the Duty Judge for determination on the papers.

Orders