Marginson v Bhana

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-1693 [2017] NZHC 823

IN THE MATTER
of an appeal against a decision of the

Family Court at Auckland

BETWEEN

KEVIN JOHN MARGINSON Appellant

AND

MADHU BHANA Respondent

Hearing: On the Papers

Counsel:

J G Donovan and M H Donovan for Appellant
P J Wright for Respondent

Judgment:

28 April 2017

COSTS JUDGMENT OF FOGARTY J

This judgment was delivered by Justice Fogarty on
28 April 2017 at 2.30 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:
J G Donovan, Auckland
Stainton Chellew, Auckland

MARGINSON v BHANA [2017] NZHC 823 [28 April 2017]

[1] By judgment delivered on 25 November last1 I dismissed an appeal against a decision of the Family Court ordering interim maintenance to the de facto wife.

[2] The last paragraph of the judgment, paragraph [24] of the judgment reads:

The respondent is entitled to costs, to be calculated on a 2B basis. If the parties cannot agree costs, I will receive submissions limited to five pages, exchanged in advance.

[3] That was a finding, and remains a finding, that the respondent is entitled to costs to be calculated on a 2B basis. The Court has received submissions where both parties are under the misapprehension that they were entitled to argue whether or not the respondent is entitled to costs and if so, on what basis.

[4] The respondent has calculated costs on a category 2B basis totalling 6.3 days at $2,230 per day, the sum of $14,049. Counsel for the unsuccessful appellant has calculated costs on a category 2 basis, but with a mixture of category A and category B arriving at 5.2 days.

[5] My judgment was for all attendances on a category 2B basis. I have compared the identification of steps. I agree that the respondent should not get costs on sealing an order. So I recalculate costs at 6.1 x $2,230=$13,603.

[6] Accordingly, the costs awarded are as calculated by the respondent’s counsel

in the sum of $13,603.

[7] This judgment has been delayed because of the submissions received from the parties having been mislaid in the Registry. Nonetheless, the award for costs
carries interest under the Judicature Act from the date of this judgment.

1 Marginson v Bhana [2016] NZHC 2835.

CaseChat Overview and Summary

The case of Marginson v Bhana involves an appeal by the appellant, Kevin John Marginson, against a decision of the Family Court at Auckland, which had ordered interim maintenance to the de facto wife, Madhu Bhana. The appeal was dismissed by Justice Fogarty, who ruled that the respondent was entitled to costs. The matter came before the court again for the calculation of those costs, with the original ruling stating that the costs should be calculated on a 2B basis. Both parties submitted calculations of costs, but there was disagreement over the basis on which the costs should be calculated and the specific amount owed.

The court clarified that the respondent was indeed entitled to costs as previously determined, but the parties had misconstrued the basis for their arguments about the costs. The court reviewed the submissions and recalculated the costs, taking into account the correct category and the number of days involved. It was determined that the costs should be calculated at 6.1 days at $2,230 per day, resulting in a total of $13,603. The court also noted that the award of costs would accrue interest from the date of the judgment.

The final orders of the court were that Madhu Bhana was to be awarded costs in the sum of $13,603, plus interest accruing from the date of the judgment. This recalculation was necessary due to a clerical error where the submissions from the parties were misplaced in the Registry, leading to a delay in the judgment. The court underscored the importance of adhering to the original ruling regarding the basis for calculating costs and provided a clear recalculation to resolve the dispute.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Hearing:	On the Papers
Counsel:	J G Donovan and M H Donovan for Appellant P J Wright for Respondent
Judgment:	28 April 2017