SLAMONS (FORMERLY JONES) V JONES HC AK CIV-2010-404-1742

SLAMONS (FORMERLY JONES) V JONES HC AK CIV-2010-404-1742 [3 September 2012]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2010-404-1742[2012] NZHC 2202BETWEEN CORINNA BETTY SLAMONS(FORMERLY JONES)PlaintiffAND PHILLIP RONALD JONESDefendantHearing: (ON PAPERS)Appearances: C T Patterson and A M Halloran for the plaintiffJudgment: 3 September 2012Judgment of Associate Judge[on Costs]This judgment was delivered by me on03.09.12 at 4.30 pm, pursuant toRule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateCounsel:Holland Beckett, Tauranga – lizzy.wiessing@hobec.co.nzMr C T Patterson – chris@patterson.co.nzGanda & Associates, P O Box 27-227, Mt Roskill – pganda@gandalaw.co.nz – solicitor on the record[1] The plaintiff seeks judgment by default and requires a Court Order to determine costs.[2] The costs position is complicated by the fact that in addition to the proceedings brought in the High Court to sue on a Relationship Property settlement agreement, there are also costs to be determined with regard to an application in the Family Court pursuant to which the defendant sought to have the relationship property agreement set aside. It is clear that he abandoned those proceedings. The proceedings were started following a direction from Associate Judge Christiansen deferring a decision in the High Court proceedings until an application could be brought and heard in the Family Court to set aside the Relationship Property Agreement and it is that proceeding which was abandoned.[3] So far as that proceeding is concerned, the starting point is that the plaintiff is to have costs on a 2B basis pursuant to the daily rate applicable for Category 2 proceedings in the District Court at the time when the various steps were taken.[4] I next consider the issue of whether an uplift should be granted in relation to the Family Court proceedings. In my view an uplift should be granted. The first reason is that both Family Court Judges Druce and Hikaka made adverse reference to the conduct of the defendant in the Family Court. The former referred to Mr Jones"intentional default" in complying with his obligations. The matter referred to the long and "torturous" Court path that the proceedings had taken. In the end thefixture that was scheduled to take place in the Family Court on 2 February 2012 did not proceed because the defendant did not show up. He had written in advance of the hearing through his counsel to excuse his attendance but plainly Judge Hikaka was unimpressed with the grounds that he justified his non-attendance on because rather than adjourning the proceeding he struck it out.[5] I consider that an order for increased costs is justified under Rule 4.6.3 of the District Court Rules 2009 and in particular, on the grounds of (b)(i). The last minute failure to attend at a fixture without giving a proper excuse or reason would seem to fit with the pattern described by Judge Druce. Taking these matters into account Iconsider an uplift of 30% on the costs otherwise payable under the District Court Rules is appropriate.[6] So far as the High Court proceedings are concerned, the plaintiff made an offer to settle the proceedings on 12 August 2011 which was not responded to. The offer was to settle on the terms that a payment of NZ $450,000 would be paid to the plaintiff. In the event the plaintiff it turns out is entitled to judgment in the sum of $546,678.25 which is calculated on the basis of $421,857.25 as explained in the statement of claim together with contractual interest at the rate of 12% from 3 December 2009 to 22 May 2011 in regard to the balance.[7] The offer to settle was a fair and reasonable one. The defendant by failing to accept the offer has put himself at risk for an increased costs order for steps in the proceedings following the date of the order.[8] Accordingly, I direct that the plaintiff in the High Court proceedings is entitled to costs on a 2B basis and as well, is entitled to a 30 % uplift on those costs for such steps as were taken after the date when the plaintiff's counsel wrote making the Calderbank offer, on 12 August 2011.[9] The disbursements which the plaintiff claims are allowed in total.[10] Leave is granted to either party to apply for further directions relating to the present costs order provided such directions are sought no later than 21 days from the date of this judgment._____________J.P. DoogueAssociate Judge