Wilson v Wilson

[2014] NZHC 260

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2013-419-000768 [2014] NZHC 260

IN THE MATTER             of the Protection of Personal and Property

Rights Act 1988

BETWEEN  THOMAS WILSON Appellant

ANDJOAN WILSON Respondent

Hearing:                   On the papers

Counsel:                  EJ Hudson for Appellant

D Chambers QC for Respondent

Judgment:                24 February 2014

JUDGMENT OF ASHER J (Costs)

This judgment was delivered by me on Monday, 24 February 2014 at 4.00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Neverman Bennett, Hamilton.

Dyer Whitechurch, Auckland. D Chambers QC, Auckland.

EJ Hudson, Hamilton.

WILSON v WILSON [2014] NZHC 260 [24 February 2014]

[1]      By judgment dated 20 December 2013 I struck out an appeal by Mr Wilson from the Family Court.   I determined that the appeal was from an interlocutory decision and an application for leave to appeal was required.   No leave had been sought.

[2]      I also found on the substantive merits that there was no jurisdiction for any orders staying or striking out the proceeding.

[3]      Ms Chambers QC on behalf of the respondent, Ms Wilson, seeks costs on a category 2 basis, but also seeks indemnity or in the alternative increased costs.  She argues that the appellant’s argument lacked merit and that he failed to accept an offer of settlement which could have disposed of the proceedings.  She also submitted that the respondent took unnecessary procedural steps which caused increased costs.

[4]      In response, Mr Hudson for the appellant, Mr Wilson, takes issue with some of the claims in the cost schedule and argues against increased or indemnity costs.  It is  submitted that the arguments  put  forward had  some  merit.   There  was,  it  is submitted, no offer of settlement, but rather an expression of the respondent’s counsel’s opinion on the merits.   References to offers to settle a substantive proceeding  are  of  no  relevance,  as  the  interlocutory  order  did  not  settle  the substantive proceedings.

[5]      In his calculation costs in the sum of $9,353 ought to be awarded.

Decision

[6]      In my view this application was doomed to failure from its inception.  There is no doubt that leave to appeal was required, but no leave was sought.  The basic argument that the proceeding had come to an end because of a Judge’s minute, was doomed to failure as it had involved reading words into the Judge’s minute that were not there.

[7]      Appeals such as these can have the effect of delaying proceedings.   In the Family Court jurisdiction it is important that technical arguments (particularly those without merit) are not raised which have the effect of delaying the determination of

substantive issues which are causing real difficulties in a family and require urgent resolution.

[8]      These factors persuade me that some uplift on standard costs is required for bringing a hopeless appeal that caused delay in family proceedings that require urgent resolution.

[9]      I am not, however, persuaded that the settlement offers or correspondence warrant any uplift.  The relevant letter is a letter from counsel very firmly setting out a position that has ultimately been held to be correct, but is not to be regarded as the equivalent of a Calderbank offer.  Efforts to settle the substantive proceedings have no relevance to the judgment which only dealt with an interlocutory issue, and which contained no assessment of the overall merits.

[10]     I am prepared to accept the summary of costs as claimed by the respondent, save for the allowance for second counsel.  I find the travel costs from Auckland to Hamilton were justified, but that given the narrow nature of the issue a second counsel (while undoubtedly a useful presence) could be seen as a luxury particularly in a family context where costs are at a premium.

[11]   The costs allowed will therefore be $10,299, together with reasonable disbursements.  Because this was a hopeless appeal in a family context which has delayed matters, I order increased costs of a further $2,500.  I do not think a greater increase, or indemnity costs, is warranted, again taking into  account the family nature of this dispute.

Result

[12]     The appellant is to pay the respondent’s costs in the sum of $12,799, together with reasonable disbursements.

……………………………..

Asher J