THORPE v BARRETT [2018] NZHC 1443

THORPE v BARRETT [2018] NZHC 1443 [15 June 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2015-404-001256[2018] NZHC 1443BETWEEN THORPEPlaintiffAND BARRETTDefendantHearing: On the papersJudgment: 15 June 2018JUDGMENT OF COURTNEY JThis judgment was delivered by Justice Courtneyon 15 June 2018 at 4.00 pmpursuant to R 11.5 of the High Court RulesRegistrar / Deputy RegistrarDate[1] On 5 May 2017, I made costs order against Mr Barrett1 of $5,623.50 withdisbursements of $1,848.63. The order related to Ms Thorpe's successful appealagainst a Family Court decision. I stayed execution of the costs order pending theFamily Court setting costs in relation to the first instance hearing. The Family Courtsubsequently declined to make any award.[2] Ms Thorpe wishes to seal the costs order and enforce it. Mr Barrett has appliedto extend the stay of execution of the order and for leave to appeal both my costsdecision and that of the Family Court.[3] Mr Barrett is significantly out of time to bring an appeal against either of thecosts judgments. Because he is unrepresented and has had difficulty following whatis required under the High Court Rules I would not penalise him for his delay if therewere meritorious grounds for a proposed appeal. However, Mr Barrett has notadvanced any arguable basis for either appeal.[4] The only ground advance for the proposed appeal against my costs order is thefinancial burden the order would place on him. Mr Barrett's financial circumstancesare not a justifiable ground on which to grant leave to appeal a costs award. Althoughcosts are discretionary, they are invariably determined in accordance with theprinciples set out at r 14.2 of the High Court Rules and these include that the partywho fails should pay costs to the party who succeeds.[5] In relation to the Family Court costs judgment, the proposed ground of appealis that, in declining to make any award in Mr Barrett's favour, the Family Court Judgeoverlooked the fact that I had stayed execution of my costs order pending the FamilyCourt setting costs so that the respective costs awards could be set off against oneanother. Mr Barrett perceives the Family Court Judge's decision as wrongly failing toimplement that intention. But the Family Court Judge declined to make any order forcosts on the basis that, because Mr Barrett had not succeeded on the appeal theoutcome, any costs award been made in the Family Court, would have been set aside1 Because this is a judgment and will be available publicly I have anonymised the parties' names inaccordance with previous usage.as well as the substantive judgment. There is no error in that approach and no basison which to justify leave to appeal.[6] It follows from these conclusions that there is no basis on which to maintainthe stay of execution.[7] The applications are refused. Ms Thorpe is free to seal and enforce the costsjudgment.____________________P Courtney J