Thomas v Kane

[2021] NZHC 1579

NOTE: PURSUANT TO S 169 OF THE FAMILY PROCEEDINGS ACT 1980, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

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IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV 2020-419-91

[2021] NZHC 1579

UNDER

Section 143 of the Care of Children Act 2004

Section 177 of the Family Violence Act 2018

IN THE MATTER OF

An appeal from the Family Court

BETWEEN

THOMAS

Appellant

AND

KANE

Respondent

Hearing:

On the papers

Counsel:

Appellant in person

K L Hoult for the Respondent

Judgment:

29 June 2021

JUDGMENT (COSTS) OF CAMPBELL J

This judgment was delivered by me on 29 June 2021 at 4:00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

THOMAS v KANE [2021] NZHC 1579 [29 June 2021]

[1]    In my judgment dated 27 May 2021, I dismissed Mr Thomas’s appeal and ordered that he pay costs on the appeal to Ms Kane. I directed that, if the parties could not agree the amount of costs, they should file and serve memoranda.

[2]    Two memoranda have been filed on behalf of Ms Kane. First, Ms Kane filed a memorandum in person dated 10 June 2021. Her memorandum is in respect of a particular step in the proceeding, namely her response to an application that Mr Thomas made for a stay of a related proceeding in the Family Court. Secondly, Ms Hoult has filed a memorandum on behalf of Ms Kane dated 11 June 2021. Ms Hoult’s memorandum addresses costs for the balance of the steps in the proceeding.

[3]Mr Thomas did not file any memorandum on costs.

[4]    I deal first with Ms Kane’s request for costs on the application that Mr Thomas made for a stay of a related proceeding in the Family Court. On 2 February 2021, Lang J issued a minute recording that Mr Thomas’s application was withdrawn, with costs reserved and to be determined when the substantive appeal has been determined. Given that I determined the substantive appeal in Ms Kane’s favour, she is entitled to costs in respect of the stay application. Ms Kane seeks costs in the sum of $478. This is less than 2B costs, because the solicitor that acted for Ms Kane on the stay application charged a modest fee. I conclude that Ms Kane is entitled to costs in the sum of $478 from Mr Thomas.

[5]    Turning to Ms Hoult’s memorandum, she sets out the time allowances under Schedule 3 of the High Court Rules for the various steps that were taken in the appeal. All of those steps appear appropriate to me. These produce costs on a 2B basis (which I agree is appropriate) of $16,013.

[6]    Ms Hoult then submits that an award of increased costs is appropriate, on the basis that Mr Thomas’s appeal totally lacked merit, and that Mr Thomas took unnecessary steps in the proceeding.

[7]    I accept that a significant increase is warranted. At [9] through to [18] of my substantive decision, I summarise the procedural history of this appeal. Those

paragraphs do not make for happy reading. Mr Thomas pursued several unnecessary steps. He also made applications and filed additional submissions contrary to the directions of this Court. I have no doubt that this put Ms Kane to further and unnecessary expense. Moreover, Mr Thomas’s appeal lacked any merit. He was challenging a detailed and carefully reasoned decision. His written submissions lacked focus, and almost entirely failed to engage with the Judge’s reasons. As I recorded in my substantive judgment, Mr Thomas did not challenge many of the Judge’s key factual findings. In those circumstances, Mr Thomas’s appeal lacked any merit.

[8]    In my view this is a clear case under r 14.6 for an increased costs award. I accept that an uplift of 40 per cent is appropriate. This means that I accept Ms Kane’s claim for costs of $22,418.20.

[9]In total, therefore, I order that Mr Thomas pay to Ms Kane costs of $22,896.20.

Campbell J