Willis v Willis

[2015] NZHC 3102

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-1551 [2015] NZHC 3102

IN THE MATTER	of an appeal from the Family Court
BETWEEN	LESLIE ARNOLD WILLIS Appellant
AND	EILEEN ANNE WILLIS Respondent

Hearing:	On the papers
Judgment:	8 December 2015

COSTS JUDGMENT OF DUFFY J

This judgment was delivered by me on 8 December 2015 at 1.00 pm pursuant to

Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors:

Rennie Cox, Auckland
Peter J Cook, Remuera

Counsel:

Gray M Cameron, Barrister, Auckland

WILLIS v WILLIS [2015] NZHC 3102 [8 December 2015]

Introduction

[1]      On 21 October 2015 I allowed an appeal from a decision by Judge Burns in the Family Court in which he upheld a settlement agreement between the parties under s 21H of the Property (Relationships) Act 1976 (the Act). I allowed the appeal on the basis that the property subject to the agreement was not capable of being the subject of an agreement under s 21A of the Act, and further, that the Judge should have sought submissions from the parties before applying s 21A on his own motion. I remitted the matter back to the Family Court.

[2]      The appellant seeks costs on a 2B basis. The respondent submits that costs should not be granted in the circumstances; either costs should lie where they fall, or the issue of costs should be deferred pending the final outcome of the case in the Family Court.

Appellant’s submissions

[3]      The  appellant  seeks  2B  costs  totalling  $13,157.00  plus  disbursements  of

$1,180.00.

[4]      The appellant submits that costs should be awarded against the respondent despite the appeal arising out of the Family Court Judge’s own motion decision to apply s 21H because there was never jurisdiction to make orders under r 179 of the Family Courts Rules 2002 as the respondent had sought, and the orders sought by the respondent in the Family Court did not reflect the terms of the settlement agreement.

[5]      The costs sought are calculated on the following basis:

Step 52	in proceeding Notice of Appeal	Days allocated 1	Amount $2,230.00
54	Filling memorandum for case management conference	0.4	$892.00
55	Preparation of case on appeal	1	$2,230.00
56	Preparation of   written submissions	3	$6,690.00
57	Appearance at hearing for sole counsel	0.5	$1,115.00

[6]      The disbursements claimed consist of $540 for filing the notice of appeal and

$640 for the hearing fee.

Respondent’s submissions

[7]      The respondent submits that no costs should be awarded because the appeal did not finally determine the matters and was a result of the Registry’s error. Specifically she argues:

(a)       The issues would not have arisen if the direction in Judge Southwick

QC’s minute had been complied with;

(b)The terms of her application under r 179 reflected what the respondent considered were the terms of the settlement agreement. When the appellant  asserted  that  no  agreement  existed,  she  reverted  to  the precise terms of the agreement;

(c)      The appellant is trying to demur from the settlement reached by the parties;

(d)The respondent did not raise s 21H in the Family Court. Judge Burns decided on his own motion to apply s 21A and 21H of the Act; and

(e)      Judge Southwick QC decided to recuse herself without submissions from counsel. The respondent refers to a possible judicial review of this decision.

[8]      In addition, the respondent argues that it cannot be said that the appellant succeeded on appeal as the ultimate issue, the validity of the settlement agreement, still needs to be determined. Further, it is inappropriate to award the appellant costs when he is the party that is trying to resile from the settlement.

[9]      In the alternative, the respondent argues that the amount claimed is excessive and costs should be reduced. In particular, the respondent states that the time claimed

for preparation of notice of appeal and preparation of written submissions is too much.

Costs Principles

[10]     Costs on appeal in cases concerning relationship property are dealt with in accordance with the normal civil rules.1  While costs are at the discretion of the Court, this discretion is fettered by the rules in rr 14. 2 to 14.10 of the High Court Rules including the principles that:

(a)       Costs follow the event;

(b)Costs should reflect the complexity and significance of the proceeding and should be determined by applying the appropriate daily recovery rate;

(c)      Costs  should  not  exceed  the  actual  costs  incurred  by  the  party claiming costs; and

(d)Costs should, as far as possible, be determined predictably and expeditiously.

[11]     Rule 14.7 allows the Court to reduce the costs otherwise payable or to refuse to make an order of costs in certain circumstances. This includes where the time required for a party claiming costs was substantially less than the time allocated in band A; where the property or interests at stake were particularly low; where the party claiming costs has contributed unnecessarily to the time or expense of the proceedings; or if some other reason exists which justifies the court refusing or reducing costs despite the principle that the determination of costs should be predictable and expeditious.

Discussion

[12]     The appellant successfully appealed Judge Burns’ decision. In my view, the issues raised by the appeal were of average complexity and justified costs at a category 2 basis.

[13]     Further, I do not consider that any of the arguments raised by the respondent would justify refusing to award or reducing costs.

[14]     In relation to the submission that Judge Burns had recourse to s 21H of the

Act of his own motion, the observation of the Supreme Court is relevant:2

In virtually every case where an appeal succeeds, the appellate court has formed the view that the Judge below went wrong in some way or other. For the purposes of costs in the appellate court, it does not matter why the Judge went wrong. The losing party on the appeal almost always has to pay costs to the winning party — and in that sense “pays for” the error (as found) of the judge below. That is the consequence of a respondent fighting to maintain its win and supporting the findings of the judge below. If the respondent accepts the judge below was wrong, then it should settle with the appellant or not seek to defend the appeal. In those circumstances, it would avoid liability for costs.

[15]     Despite not relying on s 21H in the Family Court, the respondent sought to uphold the Judge’s findings on appeal. She cannot now avoid costs by seeking to distance herself from the Judge’s error.

[16]     In my view the arguments against costs based on the correctness of Judge Southwick QC’s decision to recuse herself and the ultimate validity of the settlement agreement do not help the respondent as they depend on issues which were not decided on appeal.

Award

[17]     The appellant is entitled to costs for all of the steps claimed. However, some adjustments to the costs claimed are necessary.

[18]     First step 57, appearance at hearing for sole counsel, is measured in sch 3 by the time occupied by the hearing in quarter days. The hearing on 21 October 2015 lasted a little over two hours. Accordingly, I am only prepared to award costs for a quarter day for counsel’s appearance at the hearing.

[19]      In addition, I consider that only a comparatively small amount of time was a reasonable amount of time for the commencement of the appeal and filing memorandum for the case management conference.3 Costs at a 2A basis are appropriate for these two steps. 2B costs are appropriate for the remaining steps.

[20]     I award category 2 costs in favour of the appellant on the following basis:

Category  Band/Days allocated               Amount

52 Notice of appeal	2A	0.5	$1,115.00
54 Memorandum for case management	2A	0.2	$446.00
Conference
55 Preparation of case on appeal	2B	1	$2,230.00
56 Preparation of written submissions	2B	3	$6,690.00
57 Appearance for counsel at sole hearing	2B	0.25	$557.50

[21]     This amounts to costs of $11,083.50 and disbursements of $1,180: being

$12,218.50 in total.

3      High  Court  Rule,  rr  14.2(c)  and  14.5(2).  Each  step  should  be  assessed  individually:  see

Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2010] NZCA 400, (2010) 24
NZTC 24,500 at [161].