Duncan v Duncan

[2014] NZHC 2232

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2014-404-001009 [2014] NZHC 2232

IN THE MATTER	of the Family Proceedings Act 1980
BETWEEN	ALISON LESLEY DUNCAN Appellant
AND	BRUCE LESLIE DUNCAN Respondent

On the papers
Judgment:	16 September 2014

JUDGMENT OF ANDREWS J [Costs]

This judgment is delivered by me on 16 September 2014 at 11.30 am pursuant to r 11.5 of the High Court Rules.

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

DUNCAN v DUNCAN [2014] NZHC 2232 [16 September 2014]

[1]      In a reserved judgment delivered on 7 August 2014, I declined to extend time for Mrs Duncan to appeal against certain directions given in the Family Court.1

[2]     Mr Duncan now seeks costs on a 2B basis of $14,328 together with disbursements of $553.24, in total $14,881.24.2   In the alternative, Mr Duncan seeks an order for increased costs by way of an uplift of 20 per cent on scale costs, on the grounds that the appeal was an abuse of process, and that Mrs Duncan’s conduct of the appeal unnecessarily increased costs.

[3]      In response, Mrs Duncan contends that there is no justification for an order for increased costs, and challenges individual claims for scale costs.

[4]      I do not accept that an order for increased costs is appropriate.  While I accept that, as the successful party, Mr Duncan is entitled to an award of costs, I do not accept that the appeal was an abuse of process, or that Mrs Duncan’s conduct of the appeal unnecessarily increased costs, so as to justify an order for increased costs. Costs are appropriately ordered on a scale 2B basis.

[5]      I have reviewed Mr Duncan’s schedule of claimed scale 2B costs.  I note that costs are sought on the basis of this being an interlocutory application, except in the case of items 55, 56 and 57, which are sought as if this were a substantive appeal hearing.   As the matter  before the Court  was  Mrs  Duncan’s  application  for an extension of time to appeal, it is appropriate for costs to be awarded on the basis of an interlocutory hearing.

[6]      The following amendments must therefore be made to Mr Duncan’s schedule

of costs:

(a)       Item 56 “Preparation of written submissions” should be claimed under

item 24, for which 1.5 days ($2,985.00) may be claimed.

(b)      Item 57 “Appearance” should be claimed under item 26, for which

one day ($1,990) may be claimed.

1      Duncan v Duncan [2014] NZHC 1852.

2      The schedule of costs in fact refers to a total of $14,881.33.

(c)      Regarding Mr Duncan’s claim under item 55 “Preparation of case on appeal”, in respect of which he claims (on a 2A basis) 0.5 of a day, Mrs Duncan submitted that this was not necessary, as this Court had agreed that the bundles of documents prepared for the Property (Relationships) Act  proceeding  would  be  available  at  the  hearing before me, in order to avoid duplication.   Mrs Duncan further submitted  that,  in  any  event,  the  bundle  prepared  by  counsel  for Mr Duncan omitted annexures to all of her affidavits.   I accept that costs may be claimed by Mr Duncan, but again on the basis of an interlocutory application (item 25) for which (on a 2A basis) 0.4 of a day ($796) may be claimed.

[7]      Mrs  Duncan  further  submitted  that  Mr  Duncan  has  claimed  twice  for “item 23”.  It is evident from the memorandum of counsel for Mr Duncan that the first claim under item 23 is in relation to Mrs Duncan’s application for an extension of time to appeal.   The second claim relates to Mrs Duncan’s application to file further submissions after the hearing.   I accept that the claims relate to separate matters, and both can be claimed accordingly.

[8]      Mr Duncan’s claim for costs is allowed as follows:

Item	Time allocation	Amount
53 – commencement of response to appeal or cross-appeal	0.5	$995.00
11 – filing memorandum for mentions hearing on 20 May 2014	0.4	$796.00
12 – appearance at mentions hearing on 20 May 2014	0.2	$398.00
23 – filing memorandum in relation to application for extension of time to appeal	0.6	$1,194.00
24 – preparation of submissions	1.5	$2,985.00
25 – preparing bundle of documents (2A basis)	0.4	$796.00
26 – appearance at hearing	1.0	$1,990.00
23 – filing memorandum in relation to application to file submissions after hearing	0.6	$1,194.00

29 – sealing order (dismissal of appeal	0.2	$398.00
29 – sealing order (costs)	0.2	$398.00
Total costs:	$11,144.00

[9]      Disbursements of $553.24 are allowed.  The total costs ordered to be paid by

Mrs Duncan to Mr Duncan is, therefore, $11,697.24.

Andrews  J