K v K [2022] NZCA 48

K v K [2022] NZCA 48 [10 March 2022]NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B,11C AND 11D OF THE FAMILY COURT ACT 1980.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA669/2021[2022] NZCA 48BETWEEN KApplicantAND KRespondentCourt: Gilbert and Collins JJCounsel: Applicant in personE G Snedden for RespondentJudgment:(On the papers)10 March 2022 at 9.30 amJUDGMENT OF THE COURTA The applicant's application for leave to appeal against the costs judgment isdeclined.B The respondent's application for a stay is declined.C There is no order for costs.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)[1] The applicant applies for leave to appeal against a costs award made inthe High Court on an interlocutory application for an extension of time to appealagainst a Family Court judgment.[2] The parties were formerly married and have two teenage children.They separated in July 2015 and their marriage was dissolved in March 2018. In ajudgment delivered on 4 December 2020, Judge von Keisenberg resolved alloutstanding issues concerning the division of the parties' relationship property(the substantive judgment).1 Although the applicant was largely successful, she wasdissatisfied with the quantum awarded. She applied for a rehearing, but thisapplication was dismissed by the Judge in a minute dated 21 January 2021(the rehearing decision). The Judge considered she had no jurisdiction to hearthe application because it had been filed out of time.[3] By the time the parties were notified of the rehearing decision, the time toappeal against the substantive judgment had also expired. On 10 March 2021,the applicant appealed against the rehearing decision. She also applied for anextension of time to appeal against the substantive judgment.[4] In a judgment delivered on 12 July 2021, Walker J allowed the appeal againstthe rehearing decision, finding that the Family Court had jurisdiction to grant anextension of time and could therefore determine the application on its merits.2The rehearing application was therefore remitted to the Family Court forreconsideration.3 The Judge made no order for costs on the appeal againstthe rehearing decision because the applicant had succeeded on a jurisdictional pointthat had not been raised in her application.4[5] The Judge also granted an extension of time to appeal against the substantivejudgment on the condition the appeal was prosecuted diligently and without delay.5The Judge expressed the provisional view that the applicant should pay costs on thatapplication because the extension of time to appeal was granted as an indulgence.6The applicant had also been in default in complying with timetable directions for1 [Little] v [Little] [2020] NZFC 6638 [Substantive judgment].2 [K] v [K] [2021] NZHC 1743 [High Court judgment] at [29].3 At [64(c)].4 At [65].5 At [64(a)].6 At [65]–[66].the filing of submissions. The Judge set a timetable for the exchange of memorandaaddressing costs in the event the parties could not reach agreement.7[6] The parties could not agree on costs. The respondent sought costs of $16,849calculated on a 2B basis. The applicant argued, contrary to the provisional viewexpressed by the Judge, that no costs should be ordered. Alternatively, she claimedthe costs sought were excessive. In a judgment delivered on 21 September 2021,Walker J awarded costs to the respondent on the application for an extension of timeto appeal in the sum of $7,528.50.8[7] The applicant applied to the High Court for leave to appeal against the costsjudgment. This was declined by Walker J for the reasons set out in her judgmentdelivered on 19 October 2021.9[8] The applicant now applies to this Court for leave to appeal against the costsjudgment. The respondent opposes the application for leave to appeal and has filed across-application for a stay of these proceedings pending determination of the appealagainst the substantive judgment. The appeal was heard in the High Court on4 November 2021 and a decision is expected shortly.[9] We deal with the application for leave to appeal first because the stayapplication is contingent on leave being granted.[10] The principles to be applied on an application for leave to appeal against anorder made on an interlocutory application are well settled. The threshold is high.The applicant must identify an arguable error of law or fact. The issue must be ofgeneral or public importance, or of sufficient private importance to justify the expenseand delay of the proposed appeal. The ultimate question is whether the interests ofjustice are best served by granting leave.107 At [65]–[66].8 K v K [2021] NZHC 2475 [Costs judgment] at [18].9 K v K [2021] NZHC 2787.10 Finewood Upholstery Ltd v Vaughn [2017] NZHC 1679 at [9] and [13], endorsed in Greendrakev District Court of New Zealand [2020] NZCA 122 at [6].[11] The applicant seeks to argue on appeal that the Judge was wrong to award costsagainst her. Costs normally follow the event and she was the successful party.She maintains that the respondent acted unreasonably in opposing her application foran extension of time to appeal. She relies on the Supreme Court's judgment inAlmond v Read for her submission that the respondent should have been vulnerable toan adverse costs award.11 She says the Judge was wrong to characterise the grant ofthe extension of time as an indulgence. She also challenges various aspects ofthe costs calculation and says that costs should not have been awarded tothe respondent for affidavits she claims were misleading and inaccurate.[12] Costs are always a matter of discretion. The discretion is ultimately to beexercised to do justice between the parties in the given case in accordance withestablished principles. The Judge dealing with the substantive matter is best placed tomake the assessment. Costs awards are not lightly interfered with on appeal for thisreason.[13] The Judge applied settled principles to the facts of this particular case.The proposed appeal does not raise any matter of general or public importance.The Judge's assessment was detailed and fully reasoned. We consider the prospect ofa successful appeal being mounted against the exercise of the Judge's discretion toaward modest costs to the respondent is slim. We are satisfied the further cost,inconvenience and delay of an appeal to this Court cannot be justified.[14] Leave to appeal is therefore declined. It follows that we need not considerthe application for stay. That application falls away and is accordingly declined.Both applications having failed, we make no order for costs.Result[15] The applicant's application for leave to appeal against the costs judgment isdeclined.[16] The respondent's application for a stay is declined.11 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [39(b)].[17] We make no order for costs.Solicitors:SimpsonWestern, Auckland for Respondent