Wootton v Wootton

[2020] NZHC 3012

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2020-485-300

[2020] NZHC 3012

UNDER

section 142 of the Land Transfer Act 2017

BETWEEN

MARGARET ANN WOOTTON

Applicant

AND

PHILLIP GARRY WOOTTON

Respondent

Counsel:

Applicant in person

E Collins for respondent

Judgment:

13 November 2020

COSTS JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[On the papers]

[1]                 In my judgment dated 13 October 2020 I dismissed the applicant’s application for an order sustaining caveats lodged by her over properties owned by the respondent (in his capacity as trustee).

[2]In the penultimate paragraph of my judgment I said:

[20]As to costs, whilst I did not hear Ms Wootton or counsel on this topic, my preliminary view is that the respondent is entitled to his costs on a 2B basis. If costs cannot be resolved in view of that preliminary indication, then the parties may file memoranda in the usual way.

[3]                 The respondent now seeks costs on that basis, and Mr Collins has filed a short memorandum identifying the various steps in the proceeding down to the date of my judgment and applying the scales on a 2B basis to these.

[4]The respondent seeks costs and disbursements totalling $20,197.

WOOTTON v WOOTTON [2020] NZHC 3012 [13 November 2020]

[5]The applicant opposes any costs award.

[6]In the opening paragraph of her memorandum in response, the applicant says:

The applicant respectfully directs the Court to He v The Earthquake Commission [2018] NZHC 67 at [73] whereby her Her Honour Dunningham J declared that the costs judgment is not payable until the plaintiffs’ appeal is determined or withdrawn.

[7]                 The applicant has completely misunderstood the effect of Dunningham J’s judgment in He. Paragraph [71] of her Honour’s judgment reflects the orthodox position that the filing of an appeal does not operate as a stay of any aspect of the judgment which of course includes a consequential costs order whether delivered at the same time as the substantive judgment or later.

[8]                 What her Honour was dealing with in the two subsequent paragraphs to which the applicant refers is an earlier costs judgment where Gendall J had expressly said that it was not to come into effect or be enforceable until after any appeal was finally disposed of.

[9]                 In this case, the Court of Appeal has stayed the removal of the caveats pending the disposal of the appeal, and that stay will preclude the respondent from enforcing any costs award.

[10]             However, like Dunningham J in He, the view I take is that costs should nevertheless be fixed in this Court so that the Court of Appeal and the parties are aware of the outcome in this Court.

[11]For that reason, I propose to fix costs.

[12]             Having reviewed the respondent’s schedule of costs and disbursements I can see no obvious error.

[13]             I have not found it especially easy to follow the applicant’s memorandum. However, it appears to me that her objections to the respondent’s costs application fall into three broad categories:

(a)First, she repeats a series of accusations against counsel for the respondent. I am unpersuaded there is any foundation for these;

(b)Second, she attempts to re-argue a number of points raised in the substantive proceeding and dealt with in my earlier judgment. These are irrelevant to the costs issue, though no doubt they will be the subject further argument on appeal;

(c)Third, in relation to a number of the heads of claim for costs, she says that the application were very brief and did not require the respondent to file written submissions or develop extensive argument. There is something in this. Although the respondent is entitled to point to at least three stages in the proceeding, the reality is that only the substantive application by the applicant for orders sustaining a caveat required detailed analysis and attention. Having reflected on this point, the view I take is that substantial justice will be done between the parties if I exercise the Court’s overarching discretion in relation to costs by reducing the total amount of the scale costs by 25 per cent.

[14]             I make a costs order in the respondent’s favour against the applicant in the sum of $14,906.25 together with disbursements of $360.

Associate Judge Johnston

Solicitors:

Collins & May Law, Lower Hutt for respondent