VAN WIJK v WESTRA [2019] NZHC 1840

VAN WIJK v WESTRA [2019] NZHC 1840 [2 August 2019]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECIV-2019-463-0005[2019] NZHC 1840BETWEEN PAULINE VAN WIJKAppellantAND ERIK JOHN WESTRARespondentOn the papers: at RotoruaJudgment: 2 August 2019JUDGMENT OF POWELL J[Costs]This judgment was delivered by me on 2 August 2019 at 10 a.m. pursuant toR 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors: Tompkins Wake, RotoruaHolland Beckett Law, RotoruaCopy for: Appellant[1] The respondent, Erik Westra, seeks costs against the appellant,Pauline van Wijk, after Ms van Wijk discontinued her appeal against a Family Courtparenting order after legal aid was refused.[2] Mr Westra seeks costs on a 2B basis on both the appeal and the application forcosts. Ms Ambler, for Mr Westra, notes various procedural irregularities at the timethe appeal was filed by Ms van Wijk. She goes on to submit it was not reasonable forMs van Wijk to bring or continue the appeal, and that her conduct prior to theproceeding commencing was unreasonable. As a result, Mr Westra seeks $4,014.00on the appeal itself and a further $1,115.00 plus the sealing fee of $446.00 on theapplication for costs.[3] In response, Ms van Wijk does not take issue with the calculation but deniesunreasonably commencing and prosecuting the appeal noting that it was onlyabandoned when she was not able to access legal aid. On the contrary she submitsthat the Family Court orders were contradictory and submits that an award of costswill lead to significant hardship, on top of other significant debts she is currentlypaying off.Legal principles[4] The starting point for costs in this case is r 15.23 of the High Court Rules 2016which provides:Unless the defendant otherwise agrees or the court otherwise orders, a plaintiffwho discontinues a proceeding against a defendant must pay costs to thedefendant of and incidental to the proceeding up to and including thediscontinuance.[5] The authorities make it clear that the Rule establishes a presumption for costson a discontinuance which may be displaced if the Court finds there are circumstanceswhich make it just and equitable that costs should not be paid.11 McGechan on Procedure (online loose-leaf edition) at [HR15.23.01], citing Krama Colour PrintsLtd v Tridonicatco NZ Ltd [2008] NZCA 150, (2008) 18 PRNZ 973; FM Custodians Ltd v Pati[2012] NZHC 1902 at [10]-[12] and Opus International Consultants Ltd v Colac Bay Vision Ltd[2015] NZHC 1782, [2015] NZCCLR 19 at [20]-[24].[6] In addition, as Ms Ambler notes, generally:2(a) The Court will not consider the merits of the respective cases, unlessthey are so obvious that they should influence the costs outcome.(b) The Court will consider the reasonableness of the stance of both parties:whether it was reasonable for the plaintiff to bring and continue theproceeding, and for the defendant to oppose the proceeding up to thepoint of discontinuance.(c) Conduct prior to the commencement of the proceeding may be relevant(for example, if any conduct by a defendant precipitated the litigation),as may be the reason for discontinuing (for example, a change ofcircumstances rendering the proceeding unnecessary).Discussion[7] Having reviewed the file it is clear that there is little, other than the presumptionof costs in r 15.23, to warrant an award of costs in this case. First, it is difficult to seewhy Ms van Wijk's conduct prior to the commencement of the appeal would berelevant: it is not Ms van Wijk's conduct that has precipitated the appeal, rather it wasthe judgment of the Family Court and Ms van Wijk is entitled as of right to bring theappeal. Secondly, having looked at the file I am not satisfied the merits are so clearcut as to be able to influence the costs outcome.[8] In addition, the various procedural defects identified by Mr Westra at the timethe appeal was filed do not appear to have resulted in any additional costs toMr Westra, and the appeal was otherwise proceeding towards a hearing in an orderlyfashion until the discontinuance was filed. The proceedings had not however got to apoint where significant work was required from the respondent, and it is noted that thepossibility of a discontinuance was foreshadowed when Mr Braithwaite accepted2 McGechan on Procedure (online looseleaf ed) at [HR 15.23.01], citing Kroma Colour Prints Ltdv Tridonicatco NZ Ltd [2008] NZCA 150, (2008) 18 PRNZ 973 and FM Custodians Ltd v Pati[2012] NZHC 1902 at [10]-[12].instructions on behalf of Ms van Wijk, noting his appointment was conditional on legalaid being granted.[9] Against those considerations, the information provided by Ms van Wijk as toher ability to pay an award of costs appears somewhat incomplete. In addition,whether costs should be fixed is a different issue than whether the award will beenforced.[10] Taking all these matters into account, I am satisfied that a modest award ofcosts is appropriate on the discontinuance and I fix this at $2,500.00, plus the sealingfee of $446.00.Decision[11] Ms van Wijk is to pay Mr Westra the sum of $2,946.00._______________________________Powell J