Wynne v Slater HC Auckland CIV 2006-404-007566

[2007] NZHC 1870

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2006-404-007566

UNDER  the Property (Relationships) Act 1976

IN THE MATTER OF     an appeal from the Family Court sitting at

Auckland

BETWEEN  F A WYNNE Appellant

AND  C E N SLATER Respondent

Hearing:         18 June 2007

Appearances: D S Maclaurin for Plaintiff

A G Stuart for Respondent

Judgment:      19 June 2007

JUDGMENT OF COOPER J

This judgment was delivered by Justice Cooper on

19 June 2007 at 9.30 a.m., pursuant to r 540(4) of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Wadsworth Ray, PO Box 26-301, Epsom, Auckland

Webster Malcolm & Kilpatrick, PO Box 22, Warkworth
Copy to:

D S Maclaurin, PO Box 78 346, Grey Lynn, Auckland

WYNNE V SLATER HC AK CIV 2006-404-007566  19 June 2007

[1]      This matter came before me in the Duty Judge’s list on Monday 18 June

2007.   The issue between the parties has now been confined to the question of whether costs should be payable on a withdrawn appeal from a decision made in the Family Court  on  22  November  2006.    For the  plaintiff,  Mr  Stuart  had  filed  a memorandum seeking costs on an indemnity basis under r 48C of the High Court Rules.    Relying  on the  decision  of Goddard J in Headley  v  Kiwi  Co-Operative Dairies Ltd (2002) 16 PRNZ 694 he submitted that the appellant in this case had acted vexatiously and frivolously in bringing the appeal.

[2]      The notice of appeal was evidently filed by the appellant, acting for himself. He sought orders that certain identified paragraphs in the judgment of the Family Court be set aside as being a “nullity”, having been secured in breach of the rules of natural justice and of the New Zealand Bill of Rights Act 1990.  He contended that the Judge who dealt with the matter substantively had been “handicapped by the absence of evidence from the appellant due to an ultra vires “unless” order made by another Judge.  That order had, he claimed, prevented him from presenting his case.

[3]      The appeal was originally called before Winkelmann J on 13 February 2007. As of that date, Mr Maclaurin had only recently been instructed for the appellant and the appeal was adjourned for further mention on 27 February.   At the conference held on that day, counsel for the appellant advised of an intention to apply for leave to file an amended notice of appeal, for leave to adduce further evidence and for an order dispensing with the requirement for security for costs.   Counsel for the respondent also indicated that the respondent would file an application to strike out the appeal.  Winkelmann J directed, in accordance with the agreement of the parties, that all interlocutory applications were to be filed and served by 9 March 2007.  She further noted that the appellant was to make application for legal aid so that security for costs was not required to be fixed.  Further, she allocated a hearing date for the interlocutory applications on 11 June 2007 at 2.15 p.m.

[4]      The only application that  was  filed  was  the  respondent’s  application  for striking out the appeal.   On 7 June 2007, the appellant simply filed a notice of abandonment.

[5]      In an affidavit sworn in support of her application, the respondent detailed the history of the relationship property proceedings between the parties in the Family Court, breaches of undertakings given by the appellant to that Court and breaches of orders made in that Court restraining the disposal of property.  The litigation history also  included a  failure to  comply with orders for the  payment  of costs, despite assurances through counsel that costs would be paid, and at one stage, the reference by counsel then acting to a photocopy of a cheque in favour of the respondent’s solicitors, allegedly representing moneys loaned to the appellant so that the costs could be paid.

[6]      I agree that the circumstances justify an award of indemnity costs under r 48C.  The overall history of the litigation led Mr Stuart to submit that the appellant had consistently delayed and obstructed the matter since proceedings were commenced in the Family Court in 2002, and that he has largely ignored or sought to evade  the  effect  of  his  undertakings  and  orders  restraining  the  disposition  of property.   As a result of filing the appeal, the process of enforcing the judgment against him in the Family Court (he owes the respondent the substantive sum of

$570,000) has been delayed.

[7]      Mr Stuart submits that, despite the foreshadowed interlocutory applications, the appellant had effectively taken no steps prior to abandoning the appeal, and at no stage has he attempted to justify the assertions in the appeal.

[8]      Mr Maclaurin appeared, but only to seek leave to withdraw.   I granted him leave accordingly.  However, before leave was granted he had filed a memorandum in  which  he  commented on  an  aspect  of the  respondent’s  claim  for  costs.    In particular, Mr Stuart had sought an amount in respect of preparing a memorandum for the case  management  conference that  took place before  Winkelmann J.    Mr Maclaurin  pointed  out  that  the  memorandum  had  not  been  filed  and  served. Mr Stuart candidly agreed that that was the case;  he indicated that he had prepared a lengthy memorandum dealing with the history of the matter, but realised having done so, that  it  would not  be appropriate to  address it  at the case  management conference.

[9]      The total of the costs sought by Mr Stuart was $4,709.25.  In respect of the memorandum prepared in advance of the case management conference, the sum of

$731.25 was claimed.  I proposed to disallow that amount, and allow the balance of the costs sought.

[10]     The respondent is to have costs pursuant to r 48C on the abandoned appeal in the sum of $3,938, together with $200 in disbursements (being the filing fee on the interlocutory application to strike out the appeal).