Wood v Arthur - [2017] NZHC 1725

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE
THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING- JUDGMENTS.

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2017-419-61 [2017] NZHC 1725

IN THE MATTER of the Property (Relationships) Act 1976

BETWEEN

DEAN ROBERT WOOD Appellant

AND

LINDA RAYLENE ARTHUR Respondent

Hearing: On the papers

Counsel:

S Chatwin for the Appellant
M Vickerman and J Hunter for the Respondent

Judgment:

31 October 2017

COSTS JUDGMENT OF MUIR J

This judgment was delivered by me on Tuesday 31 October 2017 at 4.00 pm
Pursuant to Rule 11.5 of the High court Rules.
Registrar/Deputy Registrar
Date:…………………………

Counsel/Solicitors:
S Chatwin, Chatwin Legal Limited, Hamilton

WOOD v ARTHUR [2017] NZHC 1725 [31 October 2017]

M Vickerman, Barrister, Auckland
J Hunter, Solicitor, Thames

Introduction

[1] Ms Arthur and Mr Wood were in a relationship from 1984 to January 2013. Following their separation, the Family Court made spousal maintenance orders and orders for the division of relationship property. Mr Wood appealed to this Court against the second of those decisions, and was partially successful.

[2] Mr Wood now seeks costs of $30,000. Ms Arthur opposes his application for costs and submits that costs should lie where they fall.

Background

[3] On 3 September 2015, Judge Coyle in the Family Court made spousal maintenance orders in favour of Ms Arthur. The relationship property proceedings then came before Judge Coyle in January 2017. His subsequent judgment of 15
February 2017 was recalled and reissued on 9 March 2017. That judgment ordered Mr Wood to pay Ms Arthur the sum of $873,226.74. His Honour also ordered that Mr Wood pay outstanding spousal maintenance of $34,259.19 to Ms Arthur. Mr Wood appealed against the decision of 9 March 2017, raising the following issues:

(a) Did Judge Coyle miscategorise a salary of $66,000 per annum (net after tax) as drawings by Mr Wood?

(b)Should the regular weekly payments received by Ms Arthur between separation and dissolution totalling $120,600 plus the sum of $35,051 received by Ms Arthur in 2016 (a total of $155,651) be regarded as a drawing by Mr Wood to pay spousal maintenance to Ms Arthur, or a drawing by Ms Arthur from the partnership?

(c) Should the sum of $47,856.67, being the total rent paid by the partnership to a trust associated with Mr Wood, be regarded as a drawing by Mr Wood or a legitimate expense of the partnership?

(d)In relation to the period from 31 May 2016 onwards, should Ms Arthur receive spousal maintenance of $1,300 per week and/or interest on the adjustment sum at the rate of five per cent per annum?

[4] In respect of the first issue, Ms Hunter for Ms Arthur accepted that the Family Court judgment was in error. The parties had agreed that Mr Wood would be paid that salary for management of the farm…

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.

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Details

Case: [2017] NZHC 1725
Decision Date: 31 October 2017

CaseChat Overview and Summary

In the case of Wood v Arthur, the appellant, Dean Robert Wood, sought costs of $30,000 from the respondent, Linda Raylene Arthur, following an appeal against a decision of the Family Court concerning spousal maintenance and the division of relationship property. The court had to determine whether it was appropriate to award costs to Mr Wood, and if so, the appropriate amount and whether any of it should be increased. Mr Wood argued that he should be awarded costs because Ms Arthur unreasonably rejected a Calderbank offer to settle the matter for $800,000. Ms Arthur opposed the application for costs, arguing that costs should lie where they fall, and that she had not unreasonably rejected the Calderbank offer.

The court found that, although the appeal was partially successful for Mr Wood, it was not appropriate to award costs on a basis that costs should lie where they fell. The court considered that the Calderbank offer was unreasonably rejected by Ms Arthur, and as a result, Mr Wood incurred additional costs. The court found that an uplift of 20 per cent on the 2B scale costs was appropriate, resulting in an award of costs of $20,337 together with disbursements of $1,820.

The court awarded costs in favour of Mr Wood and against Ms Arthur in the amount of $20,337, together with disbursements of $1,820. The court did not accept Ms Arthur's argument that the costs should lie where they fell, as the Calderbank offer was unreasonably rejected, and as a result, Mr Wood incurred additional costs. The court also found that an uplift of 20 per cent on the 2B scale costs was appropriate, resulting in the award of costs of $20,337 together with disbursements of $1,820.

Orders