Evans v Evans

[2024] NZHC 1532

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,

PLEASE SEE https://www.justice.govt.nz/family/about/restriction-on-publishing- judgments/

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-1383

[2024] NZHC 1532

IN THE MATTER

of an appeal against a decision of the Family Court at Auckland dated 26 May 2023

BETWEEN

JEREMY EVANS

Appellant

AND

HANNAH EVANS

Respondent

Judgment:

(On the papers)

12 June 2024

JUDGMENT OF BREWER J

(Costs)

This judgment was delivered by me on 12 June 2024 at 2 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Lance Lawson (Mt Maunganui) for Appellant Morris Legal (Auckland) for Respondent

EVANS v EVANS [2024] NZHC 1532 [12 June 2024]

[1]This is a costs judgment.

[2]        On 28 February 2024, I dismissed an appeal by Mr Evans,1 the appellant, against a decision of Judge McHardy in the Family Court.2

[3]        I concluded there was no error on the part of the Family Court Judge,3 and directed:

[56] Mrs Evans is entitled to costs on the appeal. She must file her memorandum no later than 19 April 2024. Mr Evans is to file his memorandum (if any) no later than 10 May 2024.

[4]        On 19 April 2024 counsel for Mrs Evans filed submissions seeking scale costs on a 2B basis in the sum of $17,925. I reproduce the table annexed to Mrs Evans’s submissions:

Ref	Step	Time allocation	Cost ($)
10	Preparation for first case management conference	0.4	956.00
11	Filing joint memorandum of counsel dated 4 July 2023 for first case management conference	0.4	956.00
11	Filing memorandum of counsel dated 4 September 2023 for appearance in appeals list	0.4	956.00
11	Filing joint memorandum of counsel dated interlocutory application to adduce further evidence and court timetable	0.4	956.00
12	Appearance at appeals list on 5 September 2023	0.2	478.00
23	Filing opposition dated 10 July 2023 to interlocutory application for a stay dated 26 June 2023	0.6	1,434.00
23	Filing opposition dated 1 September 2023 to interlocutory application to adduce further evidence dated 25 August 2023	0.6	1,434.00
53	Commencement of response to appeal	0.5	1,195.00
56	Preparation of written submissions	3	7,170.00
57	Appearance at hearing for sole or principal counsel	1	2,390.00
Total			$17,925.00

1      This is a nom de guerre, as is the name of the respondent.

2      Evans v Evans [2024] NZHC 349.

3 At [54].

[5]        On behalf of Mr Evans, Mr Eggleston tells me that his client objects only to the costs claimed in respect of the filing of the notice of opposition dated 1 September 2023, in response to an application to adduce further evidence.

[6]        Mr Eggleston submits there are two reasons to exclude the claim. First, “part of the evidence sought” in the application was “accepted by consent”. Therefore, and secondly, Mr Evans maintains he was “not as such unsuccessful in his application”. Rather he “sought to discontinue the balance of the application” and that this “compromise” allowed the substantive case to proceed “as quickly as possible”.

[7]        I am not persuaded by Mr Evans’s arguments. First, that some of the evidence was admitted by consent does not change the position that the successful party is entitled to costs in accordance with relevant steps in sch 3 of the High Court Rules 2016. It is not in dispute that a notice of opposition was filed on 1 September 2023. Mrs Evans incurred costs preparing and filing the notice of opposition and two supporting affidavits.

[8]        The second basis on which Mr Evans opposes costs in respect of the notice of opposition is that he was “not as such unsuccessful” and discontinued the balance of the application. Again, this does not alter the fact that Mrs Evans still bore costs responding to the application and is therefore presumptively entitled to an award.

Orders

[9]Mr Evans is to pay costs to Mrs Evans in the sum of $17,925.

Brewer J