MARK ARNOLD CLAYTON v MELANIE ANN CLAYTON [2013] NZHC 1548

MARK ARNOLD CLAYTON v MELANIE ANN CLAYTON [2013] NZHC 1548 [25 June 2013]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYCIV-2011-463-000808[2013] NZHC 1548IN THE MATTER of the Property (Relationships) Act 1976BETWEEN MARK ARNOLD CLAYTONFirst AppellantMcGLOSKEY NOMINEES LIMITEDSecond AppellantCHELMSFORD HOLDINGS LIMITEDThird AppellantDEBORAH JOAN VAUGHANFourth AppellantBRYAN WILLIAM CHESHIREFifth AppellantMARK ARNOLD CLAYTONSixth AppellantBRYAN WILLIAM CHESHIRE ANDMARK ARNOLD CLAYTONSeventh AppellantAND MELANIE ANN CLAYTONFirst RespondentBRYAN WILLIAM CHESHIRE ANDMARK ARNOLD CLAYTONSecond RespondentHearing: On the papersCounsel R Harley for First AppellantCR Carruthers QC for Second to Seventh AppellantsJH Hunter and J Hosking for RespondentJudgment: 25 June 2013JUDGMENT OF RODNEY HANSEN JAs to costsThis judgment was delivered by me on 25 June 2013 at 3.00 p.m.,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: .Solicitors: Quigg Partners, P O Box 3035, Wellington 6140 for Appellants(Email: davidquigg@quiggpartners.comPhillips Hosking, P O Box 227, Rotorua for Respondent(Email: law@phillipshosking.co.nz )Copies to: RP Harley, P O Box 5241, Wellington 6145 for First Appellant(Email: rpharley@harleyschambers.com )CR Carruthers QC, P O Box 305, Wellington 6145 for Second – Seventh Appellants(Email: crc@crcarruthers.co.nz )JH Hunter, 152 Anzac Avenue, Auckland 1010(Email: jane@hunterlaw.co.nz )[1] In my judgment delivered on 22 February 2013, I determined a range of issues arising out of separate appeals brought by the first appellant (Mr Clayton) and second – seventh appellants (the trustees) and a cross-appeal by the first respondent (Mrs Clayton). I reserved costs on the basis that, if the parties were unable to agree, I would consider memoranda.1[2] Mrs Clayton seeks an order for costs against Mr Clayton. She does not seek an order against the remaining appellants on the basis that, although they were largely unsuccessful, Mrs Clayton failed in her cross-appeal.[3] Ms Harley, representing all appellants and the second respondent, opposes any order for costs at this stage. She says further that the second – seventh appellants and second respondent are entitled to costs against the first respondent. Finally, she disputes the quantum of costs claimed by Mrs Clayton.[4] The first ground of opposition to an order for costs at this stage is that the parties have consented to a stay of enforcement of this Court's judgment. It issubmitted that the grant of a stay has the effect of staying the fixing of costs. I am unable to accept that submission. The purpose and effect of the stay is to postpone implementation of the substantive aspects of the judgment pending determination by the Court of Appeal. It is no impediment to costs being determined in accordance with the Rules.[5] Secondly, I understand Ms Harley to submit that costs should not, in any event, be fixed until the Court of Appeal has determined the issues that are the subject of appeal. She submits that, until the appeal process is complete, it is premature to make an assessment of the extent to which the parties succeeded or failed.[6] I do not accept this submission either. The general rule is that costs should follow the event and should be fixed at the time a step in the proceeding has been completed. There has been a final determination of the appeal, subject only to the Family Court dealing with those issues referred back for further consideration. The1 Clayton v Clayton HC Auckland CIV-2011-463-000808, 22 February 2013 at [155].possibility (or even probability) that my decision will be varied by the Court of Appeal is no reason to fix costs at that stage.[7] I consider that Mrs Clayton's suggestion that there should be no order forcosts in relation to the contest between the trustees and Mrs Clayton is a realistic one. The trustees were unsuccessful in relation to the Vaughan Road Property Trust and the two education trusts. On the remaining issues, they were, as counsel for Mrs Clayton says, technically successful but did not succeed in substantive terms. Against that, Mrs Clayton failed in her two cross-appeals. With honours evenly divided, I agree that no order for costs is appropriate.[8] On the other hand, Mr Clayton was unsuccessful on three of the four issues he appealed. I am satisfied that Mrs Clayton is entitled to an order for costs.[9] I agree that costs should be categorised on a 3C basis. I also agree that the appeal involved legal and factual issues of sufficient difficulty and complexity to warrant second counsel. Mrs Clayton claims costs totalling $45,406. There appears to be duplication in the claim of $2,780 for item 54 as well as separate claims under items 10, 11 and 13. Otherwise the claimed costs appear appropriate.[10] I order the first appellant to pay the first respondent costs on a 3C basis totalling $42,6026.