Brain v Harwood

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV 2013-470-000572 [2014] NZHC 2067

IN THE MATTER the Family Protection Act 1955

BETWEEN

ALAN WESLEY BRAIN Appellant

AND

CLIVE HARWOOD First Respondent

DAVID CLIVE HARWOOD and ALAN WESLEY BRAIN as Executors of the Will of VIOLET MARY BRAIN

Second Respondent

On the papers

Judgment:

29 August 2014

COSTS JUDGMENT OF GILBERT J

This judgment is delivered by me on 29 August 2014 at 2 pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

BRAIN v HARWOOD & ANOR [2014] NZHC 2067 [29 August 2014]

[1] In a judgment delivered on 22 May 2014, I dismissed the appellant’s appeal from a decision of the Family Court at Tauranga which upheld the first respondent’s claim for further provision from their mother’s estate under the Family Protection Act 1955. This judgment deals with the issue of costs.

[2] The first respondent seeks indemnity costs contending: (a) the appeal had no merit;
(b)the notice of appeal did not particularise the points on appeal so that these had to be distilled from the written submissions, increasing the preparation time required; and

(c) the appellant took a “scattergun” approach to the appeal rather than

focusing on alleged errors in the judgment.

[3] Alternatively, if the Court is not prepared to award indemnity costs, the first respondent seeks costs calculated on a 2B basis.

[4] The appellant disputes the first respondent’s contentions regarding the way he conducted the appeal. He submits that indemnity costs are not appropriate in this case. However, the appellant does not oppose an award of 2B costs and he agrees with the first respondent’s calculation of these.

[5] In my, there is nothing about this case that would warrant a departure from scale costs. Although I accept that the points raised by the appellant in support of his appeal were wide-ranging and somewhat unfocused, I do not consider that the way he conducted his appeal would justify an award of indemnity costs. Such awards are reserved for exceptional cases.

[6] Accordingly, the first respondent is entitled to costs on the appeal calculated on a 2B basis in accordance with Mr Brittain’s memorandum.

M A Gilbert J

CaseChat Overview and Summary

The case of Brain v Harwood, decided by Justice Gilbert in the High Court of New Zealand, involved an appeal by Alan Wesley Brain against a Family Court decision that upheld Clive Harwood's claim for further provision from their mother's estate under the Family Protection Act 1955. The appeal was dismissed, and this judgment addresses the issue of costs associated with the appeal process.

The first respondent, Clive Harwood, sought indemnity costs based on three grounds: the appeal's lack of merit, the inadequacy of the notice of appeal in particularising the points on appeal, and the appellant's unfocused approach to the appeal. Harwood alternatively sought costs on a 2B basis if indemnity costs were not awarded. Alan Brain contested the first respondent's claims about the conduct of the appeal but did not oppose the 2B costs and agreed with the calculation proposed.

Justice Gilbert determined that the case did not warrant an award of indemnity costs, which are reserved for exceptional circumstances. While acknowledging that the appellant's points were broad and not well-focused, the court found that the conduct of the appeal did not justify such a departure from standard costs. Consequently, the first respondent was awarded costs on the appeal calculated on a 2B basis, as per the memorandum provided by Mr. Brittain.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established