CARRINGTON v CARRINGTON [2014] NZHC 3388

CARRINGTON v CARRINGTON [2014] NZHC 3388 [19 December 2014]NOTE: ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION,PLEASE SEE HTTP://WWW.JUSTICE.GOVT.NZ/COURTS/FAMILY-COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONSIN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2011-404-3775[2014] NZHC 3388IN THE MATTER of the Declaratory Judgments Act 1908, declarations atcommon law and orders under the inherent jurisdictionof the High Court that are analagous to orders under theProtection of Personal and Property Rights Act 1988BETWEEN YVONNE CARRINGTONApplicantAND BRIAN CARRINGTONRespondentHearing: On the papersCounsel: J G Miles QC, S A Grant and B R Saldanha for ApplicantA H Waalkens QC, A Ferguson and F Monteiro for RespondentK Davenport QC for Interested Party AR B Stewart QC, S M Hunter and B Tompkins for InterestedParties B and CJudgment: 19 December 2014JUDGMENT OF KATZ J(Costs)This judgment was delivered by me on 19 December 2014 at 5:00 pm pursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarSolicitors: Harmos Horton Lusk, AucklandWilson Harle, AucklandGilbert Walker, AucklandCounsel: J G Miles QC, AucklandH Waalkens QC, AucklandR B Stewart QC, AucklandK Davenport QC, AucklandS A Grant, AucklandCopy to: M Sandelin, Minter Ellison Rudd Watts, AucklandTable of ContentsIntroduction ............................................................................................................... [1]PART ONE: COSTS AS BETWEEN MR AND MRS CARRINGTON ............... [8]Overview of Mr Carrington's position in respect of costs ..................................... [8]Overview of Mrs Carrington's position in respect of costs .................................. [11]My view as to the correct approach to determining the costs issues as between Mr and Mrs Carrington ........................................................................... [15]Should Mr Carrington be awarded the costs of the entire proceedings? [16]Are increased costs appropriate? [24]Are indemnity costs appropriate for steps that occurred after 1 February 2014? [34]Summary of approach to costs issues as between Mr and Mrs Carrington [40]Interlocutory applications where costs have yet to be determined ..................... [42]Application for freezing orders in CIV-2011-404-2545 [44]Applications by Mrs Carrington dated 24 June 2011 for priority fixture, directions for service and confidentiality [47]Application by Mrs Carrington dated 21 October 2011 for medicalexamination of Mr Carrington [48]Application by Mr Carrington dated 7 December 2011 for stay of White J'sjudgment pending appeal [53]Application by Mrs Carrington dated 15 May 2012 for supplementary directions related to examination of Mr Carrington [56]Judgment of Woodhouse J dated 5 September 2012 in a related Family Court Appeal [59]Application by Mr Carrington for leave to admit Darlow affidavit [60]Application by Mr Carrington for separate question and priority [62]Application by Mrs Carrington dated 6 November 2013 seeking particular discovery [65]Application by Mrs Carrington dated 25 February 2014 seeking interim injunction [66]Application by Mrs Carrington dated 4 March 2014 for leave to further amend her originating application [71]Application by Mr Carrington to strike out the proceedings for lack of jurisdiction [75]Application by both parties for costs on this costs application [79]General costs of the proceedings ............................................................................ [81]Overview of approach [81]Items 15 and 16 – Steps taken in relation to discovery and inspection [84]Item 31 - Preparation for first case management conference [86]Items 32 and 33 – Preparation of briefs/affidavits and preparation for hearing [88]Total "general" costs of the proceedings. [93]PART TWO: COSTS ISSUES RELATING TO INTERESTED PARTIES B AND C ................................................................................................................... [94]Overview of B and C's position in respect of costs ............................................... [95]Overview of Mrs Carrington's response to B and C's application for costs ...... [99]My views as to the correct approach to costs issues involving B and C ........... [103]Should B and C's entitlement to costs be linked to Mrs Carrington's successor failure on a particular issue? [103]Should increased costs be awarded in respect of two of the applications involving B and C? [106]The appropriate scale costs for attendances by B and C ................................... [110]Item 1 – 29 June 2011 appearance at first call before Lang J [111]Item 3 – 27 September 2011 filing notice of opposition and supporting affidavits [112]Item 4 – 10 November 2011 appearance at case management conference before White J [115]Item 6 – October-November 2012 – amended notice of opposition and supporting affidavits [116]Item 11 – 27 February 2014 filing opposition to interim injunction application [118]Item 12 – 20 March 2014 memorandum for case management conference [120]Item 13 – 21 March 2014 appearance at case management conference [121]Item 14 – 27 March 2014 preparation of written submissions [122]Item 15 – 31 March/1 April 2014 appearance at hearing [123]Item 16 – Preparation for first case management conference [125]Items 17 and 18 – Discovery and inspection [126]PART THREE: COSTS ISSUES RELATING TO INTERESTED PARTY A [128]PART FOUR: SUMMARY AND CONCLUSION.............................................. [136]Result ...................................................................................................................... [138]Introduction[1] Mr and Mrs Carrington married in 1988 and have been separated since 2006.1[2] In June 2011 Mrs Carrington filed an originating application in this Court, claiming that Mr Carrington had been unduly influenced to change his will and enduring powers of attorney in May 2011, at a time when he lacked mental capacity to do so. She sought orders and declarations that Mr Carrington's new will and powersof attorney were invalid. She also sought a declaration that he had lacked mental capacity to file proceedings in the Family Court, in which he had sought dissolution ofhis marriage and a division of the couple's relationship property.[3] The hearing of Mrs Carrington's originating application was eventually scheduled for 16 June 2014 (after earlier trial dates had been adjourned), with an estimated hearing time of eight weeks. This was some three years after the originating application had been filed. The delay was largely attributable to the very significant number of interlocutory issues that had arisen.[4] At an interlocutory hearing on 7 November 2013, I queried the basis on which the proceedings had been brought in the High Court (as opposed to the Family Court) and asked the parties to reflect on the issue. Mr Carrington subsequently applied, in March 2014, to strike out the proceedings on the basis of lack of jurisdiction.2 Mrs Carrington opposed that application.3[5] Following a contested hearing at which all parties were represented, I held that jurisdiction to determine the matters raised by Mrs Carrington's originatingapplication, to the extent that they were justiciable at all, lay with the Family Court in the first instance.4 The originating application was accordingly struck out in its entirety.1 I have used pseudonyms to protect the identities of the parties.2 Mr Carrington's application was supported by interested parties B and C, his adult children from aprevious marriage.3 Mrs Carrington's opposition was supported by interested party A, a minor child of Mr andMrs Carrington, through her litigation guardian.4 Carrington v Carrington [2014] NZHC 869, [2014] NZFLR 571.[6] Mrs Carrington appealed that decision to the Court of Appeal. She abandoned that appeal on 25 September 2014. The only outstanding issue is accordingly that of costs. Mr Carrington, Mrs Carrington, interested parties B and C (who were jointly represented) and counsel for interested party A (a minor child) have all filed comprehensive memoranda on costs issues.[7] I will consider the costs issues that have been raised in four parts:(a) costs as between Mr and Mrs Carrington;(b) costs issues relating to interested parties B and C (adult children of Mr Carrington's previous marriage);(c) costs issues relating to interested party A (the minor child of Mr and Mrs Carrington); and(d) summary and conclusion.PART ONE: COSTS AS BETWEEN MR AND MRS CARRINGTONOverview of Mr Carrington's position in respect of costs[8] Mr Carrington submits that he is entitled to costs in respect of the entire proceeding, save for those steps where costs have already been determined. Mr Carrington's reasoning is, essentially, that as the proceedings were wronglybrought in the High Court, Mrs Carrington should bear all of the costs of the proceedings. The only exception is where a costs determination has already been made in respect of a particular interlocutory application.[9] Mr Carrington further claims that any costs award should be uplifted by 50 per cent due to the complex nature of the proceedings, Mrs Carrington's conduct of themand the fact that they were brought in the wrong forum. Further, Mr Carrington seeks indemnity costs in relation to steps taken after 1 February 2014, when his solicitors had foreshadowed an application to strike out the proceedings for want of jurisdiction.[10] In summary, Mr Carrington seeks the following costs from Mrs Carrington:(a) Scale costs in relation to the conduct of the proceeding up to February 2014 uplifted by at least 50 per cent to reflect the complexity and nature of the proceedings and the way in which Mrs Carrington conducted them.(b) Indemnity costs on all steps taken in relation to discovery after 7 February 2014.(c) Indemnity costs on the interlocutory applications brought in 2014.(d) Indemnity costs on this costs application.(e) Disbursements ($8,810.16).Overview of Mrs Carrington's position in respect of costs[11] Mrs Carrington does not accept that the natural consequence of the proceeding being struck out for lack of jurisdiction is that she should have to meet the entire cost of the proceedings, save for those applications where costs have already been determined. She submits that Mr Carrington acquiesced in the proceedings being brought in this Court and did not raise any jurisdictional issues until the eleventh hour (and only after concerns were raised by the Court). It would therefore be unfair for there to be a general order for costs in favour of Mr Carrington for the whole proceeding.[12] Mrs Carrington further submits that it would be inappropriate for the entire costs of the proceedings to be awarded to Mr Carrington (or for costs to be increased) in circumstances where the underlying merits of the issues raised by the proceedings are yet to be determined. The costs that have been incurred by both parties for the steps taken in these proceedings are therefore not wasted costs. Both parties will have the benefit of the material prepared in these proceedings for use in proceedings that have been brought in the Family Court.[13] Mrs Carrington submits that the proper approach to costs is to consider each interlocutory step or application on its merits. Each party should be entitled to costs in respect of the applications in which they succeeded. Each attendance should be examined to assess the appropriate band and award, including whether there should be any increase to scale costs.[14] Mrs Carrington agrees that the category for the proceeding should be category 3 and that while some items should be categorised as band C, other steps should be categorised as band A or B.My view as to the correct approach to determining the costs issues as between Mr and Mrs Carrington[15] The general rule is that costs should follow the event, by being awarded to the successful party. Costs should be predictable and expeditious. Ultimately, costs are at the discretion of the Court.5 That discretion must, however, be exercised in a principled way, and in accordance with the general scheme of the High Court Rules.Should Mr Carrington be awarded the costs of the entire proceedings?[16] Mr Carrington says, in essence, that he should be awarded the costs of the entire proceedings (regardless of his success on particular issues) because they were brought in the wrong forum. Accordingly all of the costs incurred were wasted, as the proceedings were ultimately struck out.[17] Mrs Carrington's response to this submission is two-fold. First, she says that Mr Carrington acquiesced in the proceedings being brought in the High Court and did not apply to strike them out until almost three years later. He is therefore estopped from now claiming costs on the basis that the proceedings were brought in the wrong forum. Second, Mrs Carrington disputes that the costs incurred in these proceedings have been wasted. She says that she will suffer an injustice if she has to meet significant costs in these proceedings but ultimately succeeds in her Family Court proceedings. She submits that both parties will have the benefit in the Family Court proceedings of the material prepared and exchanged in this Court.5 High Court Rules, r 14.1.[18] I do not accept that any estoppel arises, either directly or by analogy. The onus of bringing proceedings in the right forum rests squarely on an applicant or plaintiff.If a Court lacks subject matter jurisdiction this cannot be "cured" by agreementbetween the parties. Nor can the mere failure of an opposing party to raise anyobjection confer jurisdiction. Mr Carrington's failure to realise that there may havebeen jurisdictional issues until a late stage of the proceedings does not give rise to an estoppel. There is no suggestion that Mr Carrington's failure to bring his strike outapplication sooner was tactical, or for improper purposes. Rather, it simply does not seem to have occurred to his original legal advisers that the High Court might not have jurisdiction to make the orders ought. While that is unfortunate, the position remains that responsibility for ensuring that the proceedings were brought in the correct forum clearly rested with Mrs Carrington.[19] Mrs Carrington's failure to bring the proceedings in the correct forum has resulted in very significant wasted costs. I do not accept the argument that the costs incurred have not been wasted, as the material will be able to be used in the Family Court proceedings. Some of the material may well be of assistance in the Family Court proceedings. It is not possible to speculate, however, as to precisely how much material (if any) may ultimately prove to be useful. It could be a very small proportion of it.[20] The issues in the Family Court, although related, will not be identical to the issues that were before this Court, for the reasons outlined in my substantive judgment. Indeed, I found that some of the issues raised by the originating application were not justiciable at all. Further, some of the orders that were sought in this Courtare not within the scope of the Family Court's jurisdiction under the Protection of Personal and Property Rights Act 1988 ("PPPRA"). On the other hand, the FamilyCourt will have jurisdiction to make a number of orders under the PPPRA that go well beyond those that were sought in these proceedings.[21] Nevertheless, I have not been persuaded that Mr Carrington should be awarded the costs of the entire proceedings on the basis that they lacked jurisdiction from the outset. In particular, in relation to the specific interlocutory applications that were brought (by both parties) during the course of the proceedings, it is my view that the costs of those applications should be awarded to the successful party, as wouldnormally be the case. That is what would have occurred if costs issues had been resolved immediately after each of the relevant hearings.[22] The various interlocutory applications were made. They were heard and determined. Mr Carrington was fully involved in this process. No jurisdictional concerns were raised in opposition to any of the applications. Rather, they were contested on their merits. In such circumstances it would be unfair to simply award all of the costs of the interlocutory applications to Mr Carrington (regardless of his success or failure) on the basis that the proceedings should never have been brought. In accordance with the usual costs principles, the successful party should be entitled to an award of costs unless there are good reasons to the contrary.[23] It is appropriate, however, that the "general" costs of the proceedings(case management, discovery and so on) be borne by Mrs Carrington. Such attendances were required to progress the proceedings generally. They are a normal incident of the conduct of proceedings and are therefore generally payable by the party who is unsuccessful overall. Ultimately Mrs Carrington was the unsuccessful party, given that her claims were struck out in their entirety.Are increased costs appropriate?[24] Mr Carrington seeks increased costs (a 50 per cent uplift) for the entire proceedings. Mrs Carrington seeks increased costs in relation to certain specific interlocutory applications.[25] It is not appropriate, in my view, to approach the issue of increased costs inrelation to the interlocutory applications on a "global" basis, for the reasons outlinedat [22] above. Rather, I will consider whether increased costs are appropriate in respect of specific interlocutory applications when I consider the relevant application.[26] I will therefore only consider at this stage whether an award of increased costs is appropriate in respect of the general conduct of the proceedings, namely those steps (such as case management or discovery) that did not relate to specific interlocutory applications.[27] Rule 14.6(3) of the High Court rules allows the Court to order a party to pay increased costs in certain circumstances. The key grounds on which Mr Carrington seeks increased costs are that:(a) The nature of the proceeding is such that the time required by Mr Carrington to defend the claim substantially exceeded the time allocated under band C (r 14.6(3)(a)).(b) Mrs Carrington has contributed unnecessarily to the time or expense of the proceeding or a step in it. In particular, she brought proceedings that were outside the scope of the Court's jurisdiction and then took a'no stone unturned' approach to the evidence filed in the proceeding. The effect of that approach was to increase the complexity, cost, time and burden of defending the proceeding. Further, the costs incurred are wasted costs (r 14.6(3)(b)).[28] The onus is on the party seeking increased costs to persuade the Court that an award of increased costs is justified.6 In relation to the second ground relied on by Mr Carrington, the appropriate threshold has been articulated in Bradbury v Westpac Banking Corp, where the Court of Appeal stated that "increased costs may be ordered where there is failure by the paying party to act reasonably".7[29] Mrs Carrington submits that increased costs are not appropriate. She says that her conduct of the litigation has not been unreasonable. There is therefore no justification for increased costs against her on this basis. Although the Court ultimately determined there was no jurisdiction to bring the proceedings, they were bought in good faith and for proper purposes. The underlying merits are yet to be determined. It cannot therefore be said that the proceedings were without merit.[30] To the extent that increased costs are sought due to the complexity of the proceeding and the difficulty of the issues raised, Mrs Carrington contends that appropriate allowance has been made for the significance and complexity of the6 Strachan v Denbigh HC Palmerston North CIV-2010-454-232, 3 June 2011 at [27].7 Bradbury v Westpac Banking Corp [2009] NZCA 234, [2009] 3NZLR 400 at [27].proceedings by allocating them as category 3 proceedings. To uplift for complexity would therefore risk double counting.[31] The issue is fairly finely balanced. I have no doubt that the time spent on defending these proceedings has substantially exceeded the time allocated under band C. To some extent that is simply a consequence of the "scorched earth" approach that both parties seem to have taken to this litigation generally and to the filing of evidence in particular.[32] I have ultimately concluded, however, that some uplift to the general costs of the proceedings is appropriate, to reflect that a very significant portion of the costs incurred will be wasted costs, as a result of Mrs Carrington having brought her proceedings in the wrong forum. Wasted costs may be claimed as increased costs. Although not all of the work undertaken in these proceedings will have been wasted, it is my view that a significant portion of it probably has been, for the reasons I have outlined at [19] to [20] above.[33] In my view a 25 per cent uplift in respect of the general costs of the proceedings is appropriate. In the normal course an uplift of 50 per cent could well have been justified. Some reduction in the uplift is appropriate, however, to reflect the reality of these proceedings, including that Mr Carrington acquiesced in them being brought in this Court. While primary responsibility for bringing the proceedings in the wrong forum must rest with Mrs Carrington, the lengthy delay by Mr Carrington in raising any jurisdictional concerns, and his active participation in the interlocutory phases, is relevant to the extent of the appropriate uplift.Are indemnity costs appropriate for steps that occurred after 1 February 2014?[34] Mr Carrington submits that, for steps taken after 1 February 2014 (when jurisdictional issues were formally raised by his solicitors) indemnity costs are appropriate. Such steps include ongoing discovery attendances, an interim injunction application, an application for leave to amend the originating application and the strike out application itself.[35] I will consider whether indemnity costs are appropriate in relation to the post 1 February 2014 interlocutory applications when I address the relevant applications. At this stage I will solely address whether indemnity costs should be awarded for steps taken in relation to discovery after 1 February 2014.[36] On 31 January 2014, Mr Carrington's solicitors advised Mrs Carrington'ssolicitors that they did not propose to expend any further resources on the High Court proceeding until the jurisdictional issues were resolved. On 7 February 2014, MrCarrington's solicitors wrote to Mrs Carrington's solicitors again, in response to demands for further discovery, and advised that Mr Carrington was not prepared to expend further time and money on the discovery process given the doubts that existed about the jurisdiction for the proceeding. It was suggested that Mrs Carrington be prepared to indemnify the respondent in respect of any wasted costs if she wanted the discovery process to continue. This position was maintained, and in an email it was confirmed that discovery would only be completed on the basis that indemnity costs would be sought if the proceeding was struck out. Mr Carrington claims indemnity costs of $7,640.23 + GST for steps taken in relation to discovery after 1 February 2014.[37] Mr Carrington concedes that additional costs for discovery would not be available if scale costs apply (as an allowance is claimed separately for the scale costs of discovery). An additional payment would be available, however, if costs were awarded at an indemnity or increased level.[38] Mrs Carrington concedes that there was communication with Mr Carrington'ssolicitors that indicated that Mr Carrington was not prepared to expend further time on discovery and would seek indemnity costs for wasted costs. She says that the discovery that she was seeking related to full copies of the new power of attorney executed by Mr Carrington, a litigation funding agreement and documents Mr Carrington had agreed to disclose in a consent memorandum dated 7 November 2013. Mrs Carrington submits that it is not reasonable for Mr Carrington to rely on his own delay and non-compliance with his discovery obligations in claiming indemnity costs. She further notes that no strike out application had been filed at the time of the correspondence from Mr Carrington's solicitors. That application was only filed on 7 March 2014, and only after Mrs Carrington had already filed anapplication for discovery and production. She submits that indemnity or increased costs should therefore not be awarded in relation to discovery after 1 February 2014.[39] A court may order a party to pay indemnity costs if (amongst other things) the party has acted vexatiously, frivolously, improperly, or unnecessarily in commencing, continuing, or defending a proceeding or a step in a proceeding. Mrs Carrington'spursuit of discovery issues in February and March 2014 did not meet that threshold. Although Mrs Carrington was on notice from early February 2014 that an application would be made to strike out the proceedings on jurisdictional grounds, this does not in itself justify an award of indemnity costs from that date. The jurisdictional issues were far from straightforward and an eight week trial was only four months away. Unless and until the proceedings were struck out the parties had no realistic option but to continue to progress the substantive proceedings, including in relation to discovery.Summary of approach to costs issues as between Mr and Mrs Carrington[40] For the reasons I have outlined, I intend to approach the costs issues between Mr and Mrs Carrington on the following basis:(a) In relation to the specific interlocutory applications that were brought (by both parties) during the course of the proceedings, the costs of those applications will be awarded to the successful party, unless there are good reasons not to do so. I will consider, where appropriate, whether an award of increased or indemnity costs should be made in respect of any particular application.(b) The "general" costs of the proceedings (case management, discoveryand so on) are to be borne by Mrs Carrington. Ultimately she was the unsuccessful party, given that her claims were struck out. The"general" costs will be increased by 25 per cent to take account of thesignificant wasted costs arising from Mrs Carrington bringing her proceedings in the wrong forum.[41] I will now consider each of the specific interlocutory applications in respect of which costs have yet to be determined, before turning to consider the general costs sought by Mr Carrington.Interlocutory applications where costs have yet to be determined[42] High Court Rule 14.8 provides that costs on interlocutory applications should generally be assessed at the time the application is decided. Unfortunately, in this case, there are a number of interlocutory decisions dating back several years where costs remain unresolved. Given that the proceedings have now been finally determined, costs issues in relation to all outstanding interlocutory applications must now be determined.[43] Annexed as Schedule A is a breakdown of the costs that I have determined are appropriate in respect of the outstanding interlocutory applications. I address each of the interlocutory applications in respect of which costs are yet to be determined below.Application for freezing orders in CIV-2011-404-2545[44] On 18 August 2011, Ellis J heard an interim application by Mr Carrington for a freezing order, in separate proceedings (CIV-2011-404-2545). That application was apparently unsuccessful.[45] On 9 December 2011, White J issued a minute adjourning the substantive freezing order application sine die. It appears that Mr Carrington did not wish to proceed with it. White J gave instructions for costs to be dealt with in February 2012. Costs submissions were apparently filed but it does not appear that any costs orders were made. It does not appear that the parties ever followed up the issue of costs in the freezing order proceedings.[46] Mrs Carrington submits that, given that the subject matter of the freezing order proceedings was related to these proceedings, it would be appropriate for costs in relation to the freezing order application to be determined in these proceedings. I have not been persuaded that that is the appropriate course. I have had no involvement in the freezing order proceedings and there is very little information on the Court file for this proceeding regarding those proceedings. Any costs issues inrelation to the freezing order proceedings should be resolved in the context of those proceedings.Applications by Mrs Carrington dated 24 June 2011 for priority fixture, directions for service and confidentiality[47] On 24 June 2011 Mrs Carrington applied for directions for service, priority fixture and confidentiality orders. Mrs Carrington claims that she succeeded, but it is not clear from her memoranda whether or not she claims costs in relation to these matters. From the Court file it appears that Mrs Carrington was partially successful in her application for confidentiality orders and that the directions in relation to service and a priority fixture were uncontroversial and were not opposed. In my view the appropriate course is for costs to lie where they fall in relation to this application.Application by Mrs Carrington dated 21 October 2011 for medical examination of Mr Carrington[48] Mrs Carrington applied under r 9.30 of the High Court Rules for an order under s 100 of the Judicature Act 1908 that Mr Carrington be examined by her expert medical witnesses. Mr Carrington opposed the application and, in particular, objected to the identity of Mrs Carrington's experts on the grounds that they were not independent. Mrs Carrington seeks costs of $15,181 in relation to this application on a 3C basis, together with a 100 per cent uplift.[49] From White J's judgment of 7 December 2011 it is apparent thatMrs Carrington was successful in her application. White J determined that theevidence of Mrs Carrington's experts showed recognition of overriding duty to assist the Court and was appropriately qualified by admission that it was based on sources other than examination. Given, that Mr Carrington did not raise jurisdictional issues at the time and opposed the application on other grounds (which were unsuccessful) Mrs Carrington is entitled to an award of costs, as the successful party. I consider that costs on a 3C basis should be awarded in Mrs Carrington's favour.[50] As for the uplift, Mrs Carrington submits that the application could have been avoided if Mr Carrington had cooperated with her "reasonable written request". She claims that Mr Carrington was unhelpful in not allowing her medical experts toundertake an assessment of him. Further, Mr Carrington was said to have had a'tactic' of 'selective co-operation' and to have made unnecessary arguments. Mrs Carrington also claimed that the time required for the application was extensive and thus increased costs are appropriate.[51] I have not been persuaded that any uplift is appropriate. Mrs Carrington has not provided sufficient justification for increased costs. Merely opposing an interlocutory application does not justify increased costs, even if that opposition is vigorous. Although Mr Carrington was unsuccessful in his opposition, it was notunreasonable for him to oppose being examined by Mrs Carrington's psychiatric andmedical experts, given the private and inherently intrusive nature of such an examination.[52] Mrs Carrington is accordingly awarded 3C scale costs of $15,181 in respect of this application, as set out in Schedule A.Application by Mr Carrington dated 7 December 2011 for stay of White J's judgmentpending appeal[53] On 20 December 2011, Mr Carrington applied for stay of execution of WhiteJ's judgment regarding the examination by medical experts, pending appeal. On 10 February 2012, Andrews J delivered a judgment declining Mr Carrington's stay application.[54] Mrs Carrington's filed a costs memorandum dated 9 March 2012 seeking $9,135 costs in relation to this application, with a 100 per cent uplift. There appears to have been no reply by Mr Carrington.[55] Mrs Carrington was clearly successful in this application. Scale costs on a 3C basis in favour of Mrs Carrington, in the sum of $9,135, are therefore appropriate. Again, I am not persuaded that there is any proper basis for an award of increased costs. There was nothing unreasonable or improper in Mr Carrington seeking a stay of execution pending appeal.Application by Mrs Carrington dated 15 May 2012 for supplementary directions related to examination of Mr Carrington[56] Mrs Carrington sought supplementary directions related to the examination of Mr Carrington. On 13 July 2012, Associate Judge Bell released a judgment giving the parties directions as to discovery and the timetabling of when certain documents had to be exchanged.[57] Mrs Carrington claims 75 per cent of the costs of this interlocutory application as she submits that she was successful. Mr Carrington denies that Mrs Carrington was 75 per cent successful. Mrs Carrington sought discovery of eight categories of documents. Mr Carrington says that he consented to seven of the categories, subject to reciprocation and protection of privilege. Associate Judge Bell agreed that there should be reciprocity and that Mr Carrington was entitled to protect privileged information. Ultimately, Associate Judge Bell made an order for discovery butsupported Mr Carrington's contention that privilege was not waived.[58] In my view the judgment of Associate Judge Bell reflects that both parties had some degree of success and some degree of failure. His Honour reserved costs and invited the parties to agree on costs or file costs memoranda in the absence of agreement. Two years have passed and this appears to be the first application for costs. Given that each party had successes and failures, it is my view that costs should lie where they fall.Judgment of Woodhouse J dated 5 September 2012 in a related Family Court Appeal[59] The parties have also addressed in their memoranda the costs arising out of a judgment delivered by Woodhouse J of 5 September 2012 in separate (but related) proceedings that involved an appeal of as interlocutory decision of the Family Court. The costs of those proceedings have already been determined by Woodhouse J. He found that Mr Carrington was entitled to his costs of the appeal on a category 3B basis, together with any reasonable disbursements. There does not appear to have been any stay of execution of that costs judgment. The parties will obviously be entitled to set those costs off against any costs awarded in this judgment, if they have not already been paid.Application by Mr Carrington for leave to admit Darlow affidavit[60] Mr Carrington applied for leave to file an affidavit (after the close of evidence) from his former solicitor, Chris Darlow. Mrs Carrington opposed the application. Ultimately the matter did not need to be determined as it was superseded by jurisdictional issues.[61] Mrs Carrington claims costs in relation to her opposition to this application. Mr Carrington also claims costs in relation to this aspect of the proceeding. Given that no judgment was delivered in respect of this application, and the intervening jurisdictional issues, it is not possible to determine the respective successes and failures of each party. It is therefore appropriate that costs lie where they fall.Application by Mr Carrington for separate question and priority[62] Mr Carrington filed an interlocutory application for a separate question to be decided before trial and for a priority fixture for that separate question. On 13 November 2013 I issued a Minute advising that there was currently no hearing time available to enable the issue to be determined sufficiently in advance of trial. I indicated that a fairly strong case would have to be put before the Civil List Judge if the application were to be prioritised ahead of other urgent matters. In the same minute I raised jurisdictional issues.[63] Given my indication that suitable hearing time was unlikely to be available prior to trial, Mr Carrington elected not to pursue the issue of a separate question. Mrs Carrington now seeks costs of $5,880 in respect of the application. Mr Carrington also claims costs.[64] Given that the reason the application did not proceed was largely beyond the control of the parties, and that it was to some extent then superseded by jurisdictional issues, costs should lie where they fall in relation to this application.Application by Mrs Carrington dated 6 November 2013 seeking particular discovery[65] Mrs Carrington claims $8,820 in relation to an application for particular discovery. Ultimately this issue was resolved by consent and a consent memorandumwas filed. Mr Carrington submits that costs should lie where they fall in relation to the application as the issue was resolved by consent. Mrs Carrington was, however, put to some expense in seeking discovery, before agreement was reached. In my view it is appropriate that costs of $2,940 be awarded to Mrs Carrington, covering the preparation of the consent memorandum.Application by Mrs Carrington dated 25 February 2014 seeking interim injunction[66] On 25 February 2014 Mrs Carrington filed an interim injunction application. The issues raised related primarily to Mr Carrington's care and welfarearrangements. The application was partially heard during a teleconference on 21 March 2014, as some orders were sought on an interim interim basis. I declined to make orders on that basis and directed that the matter be set down for a full hearing. The injunction application was then withdrawn.[67] Mr Carrington submits that the injunction application had no merit, that it was brought after jurisdictional issues had been raised, and that indemnity costs are therefore appropriate.[68] Mrs Carrington concedes that Mr Carrington is entitled to some costs in respect of the withdrawn interim injunction application, but disputes that indemnity costs are appropriate. Further, she submits that no costs should be awarded in respect of the preparation of submissions and that the costs of preparing a supporting affidavit should be covered in the notice of opposition item claimed.[69] Both of the applications brought by Mrs Carrington after 1 February 2014 (including the injunction application) faced significant obstacles and may well havebeen outside the Court's jurisdiction, due to their lack of clear connection to the issuesrequiring determination in the underlying proceedings. Ultimately, however, I did not determine the merits of the applications, as they were withdrawn. In such circumstances I am not satisfied that the high threshold for an award of indemnity costs has been reached. The question of increased costs is more finely balanced, but given that the injunction application was not ultimately determined I am not prepared to find that Mrs Carrington acted unreasonably in making it.[70] Costs on a 3C basis are accordingly appropriate in respect of the injunction application. I accept that by the time the application was withdrawn some work would have had been undertaken on Mr Carrington's behalf in relation to the preparation of submissions. I allow one day for that. I also allow one day'spreparation time in respect of the detailed memorandum prepared on behalf of Mr Carrington for the telephone conference on 21 March 2014. I accept Mrs Carrington'ssubmissions that costs should not be separately awarded in respect of the affidavit filed in support of the notice of opposition and make no allowance for that. I therefore award 3C scale costs of $17,346 in respect of this application, in favour of Mr Carrington.Application by Mrs Carrington dated 4 March 2014 for leave to further amend her originating application[71] On 4 March 2014 Mrs Carrington filed an application that, in effect, sought leave to amend the originating application to add an application to set aside a loan agreement between Mr Carrington and one of his adult daughters through which he funded the litigation. That application was withdrawn at the end of the first day of a two day interlocutory hearing, on 31 March 2014. Mr Carrington had filed a notice of opposition to the application and had also prepared submissions in relation to it, prior to it being withdrawn.[72] Mr Carrington submits that indemnity costs are appropriate for this application because it had no prospects of success, was only withdrawn at the hearing, and was an abuse of process in that it was designed solely to attack his only remaining ability to continue to defend the proceedings.[73] Mrs Carrington, on the other hand, submits that there is no justification for costs above 3B scale costs. She says that the application for leave related to matters that were not in existence at the time the originating application was filed. Mrs Carrington says that she elected not to proceed with the application but to instead pursue her allegations in separate proceedings. This was simply a pragmatic decision.[74] In my view 3C scale costs should be awarded to Mr Carrington in respect of this application, in the sum of $14,700. I have not been persuaded, however, that increased or indemnity costs are justified, for essentially the same reasons as I have outlined above in relation to the interim injunction application.Application by Mr Carrington to strike out the proceedings for lack of jurisdiction[75] Mr Carrington seeks indemnity costs in relation to his strike out application. He notes that he successfully struck out the entire proceeding on the basis of lack of jurisdiction. He says that the opposition to his strike out application had no prospects of success and that indemnity costs are therefore appropriate.[76] I am unable to agree that Mrs Carrington's opposition to the strike outapplication was so ill-founded as to justify an award of indemnity costs. The issues raised by the strike out application were difficult ones, some of them not previouslyconsidered by a New Zealand court. Although Mrs Carrington's opposition wasultimately unsuccessful, it was not unreasonable or inappropriate. The arguments advanced in opposition to the strike out application were proper and responsible.[77] In my view, however, increased costs are appropriate. Scale costs on a 3C basis would not adequately compensate Mr Carrington for the very significant time required to prepare for and argue the strike out application, which raised complex and novel questions of law. Further, the strike out application would never have been necessary if the proceedings had been brought in the correct forum in the first place. The costs of preparing and arguing it were almost entirely wasted. The strike out application did not consider or determine the merits of the underlying claims, butfocussed solely on this Court's jurisdiction to determine them. Obviously, the issue of the High Court's jurisdiction will not be before the Family Court. A 50 per cent uplift is therefore appropriate to reflect the very significant time required to prepare for the hearing (given the novel and complex nature of the issues) and, more particularly, the fact that most of the costs of the strike out hearing were wasted costs.[78] As set out in Schedule A, I award 3C scale costs in respect of the strike out application in the sum of $23,520.00, uplifted by 50 per cent to $35,280.00Application by both parties for costs on this costs application[79] Mr Carrington seeks indemnity costs on this costs application ($17,089.51).Mrs Carrington also opposes Mr Carrington's application for costs on his costsapplication. She seeks costs in her favour.[80] Both parties have had a measure of success and failure in relation to costs issues, although overall Mr Carrington has had a greater degree of success. Nevertheless, it is in my view appropriate that costs lie where they fall in relation to the costs of resolving the extensive outstanding costs issues.General costs of the proceedingsOverview of approach[81] As noted above, I have determined that Mrs Carrington should bear the general costs of the proceedings (excluding the specific interlocutory applications I have dealt with separately). Ultimately it was her responsibility, as applicant, to ensure that she filed her proceedings in the correct forum. Bringing proceedings in the wrong forum has resulted in considerable wasted costs.[82] Schedule B sets out the costs that I have concluded that Mr Carrington is entitled to under this head. I do not propose to address each item in detail, as my views will be apparent from the table itself. As a general observation, however, I note that in respect of a number of items Mr Carrington sough a band C classification whereas Mrs Carrington sought a band A or B classification. In many cases I have concluded that the particular item would have involved an ordinary amount of time to prepare. If so, I have allocated band B as the appropriate time allocation band. Insome other cases I have accepted Mr Carrington's argument that an increased time allocation is appropriate (band C). In one case I have accepted Mrs Carrington'ssubmission that time band A was appropriate.[83] I briefly outline my reasoning below in relation to some of the more heavily contested items.Items 15 and 16 – Steps taken in relation to discovery and inspection[84] Mr Carrington claims 3C costs for discovery steps. Mrs Carrington claims that Mr Carrington is not entitled to costs for this step, essentially because discovery was ordered by the Court, on the application of Mrs Carrington.[85] I do not see any reason why Mr Carrington should not be entitled to 3C costs for discovery steps, even though were the a result of court orders. Discovery steps are ordinarily recoverable. Just because discovery has been provided following a court order (rather than by agreement) does not mean that the costs of providing that discovery should not be recoverable. Mr Carrington was still put to the expense of discovery and inspection and is entitled to be compensated for that.Item 31 - Preparation for first case management conference[86] Mr Carrington claims $2,780 for preparation for the first case management conference. Mrs Carrington contends that there were no specifics provided, so she cannot check whether the costs are appropriate. In response, Mr Carrington states that the item relates to preparation for initial case management and is not related to a particular memorandum being filed, which are separately dealt with under the schedule to the High Court Rules.[87] I consider that Mr Carrington is entitled to 3C scale costs for preparation for case management, which under the former schedule 3 of the High Court Rules (which was in force at the time) comes to 0.4 days).Items 32 and 33 – Preparation of briefs/affidavits and preparation for hearing[88] Mr Carrington has made claims under 30 and 33 of schedule 3 of the High Court rules, totalling 10 days.[89] Mrs Carrington contends that, as this was an originating application, those steps do not apply and that these claims must be by way of analogy. Mrs Carrington submits that the step of preparing briefs and affidavits is partially covered by the allocation for filing an opposition in items 7, 13 and 28, so there is duplication. Further, there was no preparation for the hearing, as the claim was struck out.[90] In response, Mr Carrington states that he seeks costs for the preparation of briefs/affidavits as his costs will not be adequately covered in the items relating to notices of opposition. Mr Carrington also argues that the proceeding was struck out less than six weeks before an eight week trial was scheduled to commence, and counsel had already spent considerable time considering the evidence and pleadings in preparation for the hearing.[91] Although the proceedings were filed as an originating application, they were conducted in a manner that was very similar to ordinary proceedings. The case was set down for an eight week hearing. Over 170 affidavits were filed (albeit some of them on interlocutory issues) by 85 witnesses. Notices to cross-examine were served in relation to 67 witnesses. In such circumstances it is my view that fairness requires that Mr Carrington receive some compensation for the preparation of affidavit evidence, over and above that normally allowed for on an originating application. The five additional days sought by Mr Carrington for preparation of evidence is not unreasonable. It is undoubtedly only a small fraction of the time that was actually spent in preparation of affidavits in opposition to the originating application.[92] In relation to preparation for trial, I accept that some allowance is reasonable, given the sheer scale of the proceedings and the relative imminence of the trial date. I suspect, however, that a considerable portion of the trial preparation was deferred pending the outcome of the strike out application. I am therefore only prepared to allow two days for this item, rather than the five days sought by Mr Carrington.Total "general" costs of the proceedings.[93] As set out in Schedule B, I have concluded that scale costs in relation to the general steps undertaken in the proceedings (not relating to any specific interlocutory application) total $121,662. Uplifting that sum by 25 per cent results in an award of costs against Mrs Carrington in respect of the general costs of the proceedings in the sum of $152,077.50.PART TWO: COSTS ISSUES RELATING TO INTERESTED PARTIES B AND C[94] Interested parties B and C also seek costs from Mrs Carrington. They are adultchildren of Mr Carrington's previous marriage.Overview of B and C's position in respect of costs[95] B and C seek costs following Mr Carrington's successful strike out application.B and C were served with the proceedings pursuant to directions for service dated 24June 2011 as individuals who "may wish to be heard in relation to [the] proceeding".They note that they had a strong and legitimate interest in the subject matter of the proceedings. They were accused of undue influence by Mrs Carrington and stood to be substantially affected by the outcome of her claim. They opposed Mrs Carrington'sapplication throughout. B and C have appeared through counsel and made submissions, as well as adduced evidence in support of Mr Carrington's submissionsin various interlocutory applications.[96] B and C submit that there is jurisdiction to make an award of costs in their favour, as interested parties. They fall into the definition of "defendant" in r 1.3 andtherefore fall within the definition of a "party". B and C submit that this is confirmed in Nomoi Holdings Ltd v Elders Pastoral Holdings Ltd.8[97] B and C argue that, as their interests were affected, it was plainly right for them to be served with the proceedings and to participate until the matter was struck out. Mrs Carrington left them with no choice but to do whatever they could to defend the interests of Mr Carrington. The successful application for strike out means that the considerable expense incurred by B and C has been largely wasted. That, they say, is attributable to the wrong choice of forum on the part of Mrs Carrington.[98] With the exception of two interlocutory applications, (discussed further below) B and C seek 3C scale costs for steps taken in the proceedings.8 Nomoi Holdings Ltd v Elders Pastoral Holdings Ltd (2001) 15 PRNZ 155 (HC).Overview of Mrs Carrington's response to B and C's application for costs[99] Mrs Carrington accepts that there is jurisdiction to award costs to a party directed to be served, although she submits that the current case is distinguishable from the facts of Nomoi Holdings.[100] Mrs Carrington states that she brought the proceeding to protect Mr Carrington from the undue influence of B and C and to honour the wishes he expressed in relation to his assets when he had capacity.[101] Mrs Carrington says that the only issue that has been determined is that of the jurisdiction of the High Court. The substantive arguments remain to be determined and the evidence filed and documents disclosed will be needed in the Court that determines them. For these reasons, costs should be limited to any interlocutory applications in which B or C were involved and in which they were successful. Mrs Carrington also notes that B and C did not at any time suggest that the High Court was the wrong forum.[102] Mrs Carrington concedes that some costs should be awarded to B and C, but says that increased costs are not appropriate.My views as to the correct approach to costs issues involving B and CShould B and C's entitlement to costs be linked to Mrs Carrington's success or failureon a particular issue?[103] As interested parties, B and C did not bring any interlocutory applications themselves. They did, however, oppose some interlocutory applications brought by Mrs Carrington (including the originating application itself) and supported Mr Carrington's position in relation to some other applications.[104] B and C clearly had a strong and proper interest in the proceedings and were appropriately joined. The proceedings raised serious allegations against them and had the potential to detrimentally impact on their interests to a significant extent. The merits of the allegations against them have not yet been determined, essentially because Mrs Carrington made those allegations in the wrong forum.[105] As I have already noted, I have significant reservations as to the extent to which work undertaken in these proceedings will be able to be used in the Family Court proceedings. It is therefore appropriate in my view that (at a minimum) all of Band C's costs should be met at scale, regardless of who was 'successful' in eachapplication. The costs they have incurred in these proceedings have been largely wasted, through no fault of their own.Should increased costs be awarded in respect of two of the applications involving B and C?[106] B and C seek increased costs in respect of two applications:(a) The injunction application, in which (amongst other things) Mrs Carrington sought orders displacing B, Mr Carrington's daughterand welfare attorney, with an outsider "purportedly to remedy shortcomings in the care provided to Mr Carrington"; and(b) the application to have a loan agreement between C and her father (which enabled him to fund his defence of the litigation) set aside.[107] Counsel for B and C claims that these applications were brought without merit and were improper and unnecessary. The application to have the loan agreement set aside was said to be an abuse of process, insofar as its practical effect was to discourage C from loaning her father money for his defence, in the context of Mrs Carrington having herself previously relied on C's ability to do so as a reason not toallow Mr Carrington access to his own assets for that purpose.[108] Mrs Carrington opposes an award of increased costs in respect of these two applications. She says that she acted reasonably in bringing the applications. Further, the Court should be cautious before awarding increased costs in respect of applications it has not determined. In such circumstances, increased costs should only be awarded where the merits (or lack thereof) are clear.[109] Although the issue is fairly finely balanced, ultimately I have not been persuaded that an award of increased costs is justified. Mr reasons are essentially thesame as those I have outlined above in relation to Mr Carrington's parallel claim forincreased costs in respect of these two applications.The appropriate scale costs for attendances by B and C[110] I have set out in Schedule 3 the costs that, in my view, B and C are entitled to in respect of the various steps they took. I set out below my reasoning in relation to the most significant disputed items.Item 1 – 29 June 2011 appearance at first call before Lang J[111] B and C have claimed costs for appearing at a case management conference on 29 June 2011 before Lang J. Mrs Carrington states that this was a first call, not a case management conference. I accept that submission. As such, 0.2 rather than 0.7 days are allocated.Item 3 – 27 September 2011 filing notice of opposition and supporting affidavits[112] B and C have claimed six days for this item, on a category 3C basis.[113] Mrs Carrington notes that Mr Carrington filed the relevant notice of opposition (and supporting affidavits) and has already claimed for this item on a 3C basis. She says that B and C should either not be awarded any costs for this item or they should be awarded costs on a 3B basis, which would cover the two affidavits that they filed (one by B and one by C).[114] In my view, B and C are entitled to some compensation in respect of this step, but category 3B rather than 3C is appropriate, to reflect their lower level of involvement.Item 4 – 10 November 2011 appearance at case management conference before White J[115] Mrs Carrington claims that she was successful on this application and that B and C should therefore not be seeking costs from her on this appearance. As I have explained above, I do not think that costs should be restricted to applications in which B and C were successful. They have incurred wasted costs as a result of theirappearance at the case management conference, for which they should be compensated. Costs on a 3C basis are appropriate.Item 6 – October-November 2012 – amended notice of opposition and supporting affidavits[116] B and C seek the costs of filing an amended notice of opposition, which was supported by 10 affidavits. The amended notice of opposition appears to have been filed by Mr Carrington, who has claimed separately for this item. It appears that some of the affidavits in support were, however, prepared and/or provided by B and C.[117] Mrs Carrington submits that, if the Court is minded to award costs to B and C in respect of this item it should be on a category B basis, to reflect the lesser role of B and C as interested parties and the degree of co-operation between B and C and Mr Carrington in terms of preparation. I accept that submission.Item 11 – 27 February 2014 filing opposition to interim injunction application[118] Mrs Carrington contends that B and C are not entitled to claim for this as Mr Carrington filed the notice of opposition and has claimed for that already. Alternatively, Mrs Carrington submits that 3B costs are appropriate (rather than 3C costs).[119] I have already declined to award increased costs in respect of the injunction application, by a narrow margin. Scale costs on a 3C basis are, however, appropriate. B and C had a strong interest in the injunction application as, amongst other things, serious allegations were made regarding the adequacy of their care of their father. It was necessary and appropriate for B and C to respond to such allegations. In my view, it was questionable whether there was jurisdiction (independently of the broader jurisdictional issues) to make the interim orders sought, in the context of these proceedings. Nevertheless, once the application was made, B and C had little option other than to fully engage with it on its merits, which they did.Item 12 – 20 March 2014 memorandum for case management conference[120] Mrs Carrington contends that this was a three page memorandum and that 3B costs should accordingly be awarded. I agree.Item 13 – 21 March 2014 appearance at case management conference[121] Mrs Carrington contends that 3B should apply as the conference took less than one hour. I agree.Item 14 – 27 March 2014 preparation of written submissions[122] Mrs Carrington contends that costs should be awarded at 3A, rather than 3C as the critical issue related to jurisdiction, to which B and C did not make any submissions. I consider that the preparation of the written submissions filed on behalf of B and C would have taken an ordinary amount of time and should therefore be awarded at category 3B.Item 15 – 31 March/1 April 2014 appearance at hearing[123] Mrs Carrington submits that costs for the hearing on 31 March and 1 April 2014 should be awarded at 3C scale, but reduced by 50 per cent to reflect that most of the hearing time was devoted to jurisdiction, as to which B and C made no submissions.[124] In my view, however, it is appropriate that B and C be compensated on a 3Cbasis for their counsel's attendance throughout the hearing. Counsel for B and C hadprepared and filed submissions on issues that impacted on B and C in particular andresponsibly avoided unnecessary duplication by leaving Mr Carrington's counsel tofocus on the jurisdiction issues. It was nevertheless appropriate for counsel for B and C to attend the entire hearing. Attendance for only part of the hearing could well have given rise to practical difficulties.Item 16 – Preparation for first case management conference[125] There does not appear to be any dispute that B and C are entitled to claim for this item. I note, however, that it should be claimed under the previous schedule to the High Court Rules, at the daily rate then applying (as is reflected in Schedule C).Items 17 and 18 – Discovery and inspection[126] Mrs Carrington claims that costs should not be awarded for discovery and inspection, as the court ordered that discovery be provided. As I have previously noted in relation to Mr Carrington, it is irrelevant in my view that the discovery was court ordered. B and C were put to the costs of discovery, which were no doubt significant, whether the task was undertaken voluntarily or pursuant to a court order.[127] I consider that it is appropriate that category 3C costs should be awarded in relation to discovery and inspection.PART THREE: COSTS ISSUES RELATING TO INTERESTED PARTY A[128] Ms Davenport QC was appointed as A's litigation guardian, by order of this Court dated 14 September 2011. A was aged 14 at the time. An agreement was reached between the parties at the time of Mrs Davenport's appointment that her fees would be paid in the first instance by Mrs Carrington, but that Mr Carrington would ultimately be responsible for one-half of the costs. This agreement was subject to the overall discretion of the Court to fix costs following trial (as confirmed in a contemporaneous minute of Lang J).[129] Counsel for A has not appeared in all of the applications dealt with by theCourt, but when there have been issues relating to Mr Carrington's competence,counsel has appeared on A's behalf.[130] A, through her litigation guardian, would be entitled to seek costs from Mrs Carrington in the same way that interested parties B and C have. The costs shehas incurred have been "wasted" in the same way that costs incurred by B and C havebeen wasted. A does not seek costs from Mrs Carrington, however. That is perhapsnot surprising, given that Mrs Carrington has met all of A's costs to date. Further, Ahas supported the position taken by her mother in most (possibly all) of the applications before the Court in respect of which she has been represented.[131] Mrs Carrington seeks an order that Mr Carrington reimburse her for 50 per cent of the costs she has incurred in respect of A's representation, in the sum of $117,597.35 (including GST). She submits that both parents should be equally responsible for the costs incurred in having A's views put before the Court.[132] Mr Carrington submits, on the other hand that the Court should bear in mind that the entire proceedings have been struck out for lack of jurisdiction. This was obviously an outcome not foreseen at the time of the original agreement as to costs. He submits that there would have been no need for the scale or scope of Ms Davenport's involvement if these proceedings had not been wrongfully brought. Indeed, there would have been no need for Ms Davenport's involvement at all, at leastnot in this forum. The costs incurred in relation to A's representation have largelybeen wasted, due to the incorrect choice of forum.[133] In the very unusual circumstances of this case, it is appropriate that there be some adjustment to the arrangement originally envisaged between the partiesregarding A's costs. That arrangement was made in ignorance of a vital fact – that MrsCarrington's application was doomed to failure, as it was brought in the wrong forum. Obviously, had that been known at the time, Mr Carrington would have been unlikelyto have agreed to meet half of A's costs. As I have already noted, ultimately theresponsibility for bringing her proceedings in the wrong forum must fall squarely on Mrs Carrington and her advisers. It was not the responsibility of other parties, or the Court, to draw the error to their attention.[134] Further, although it would have been somewhat artificial for A to have sought costs from Mrs Carrington, she was entitled to do so. If she had, it is likely that a significant award would have been made. That would have reduced the balance of costs remaining to be shared by Mr and Mrs Carrington.[135] Taking all of these matters into account, it is my view that Mr Carrington should bear one-third of A's costs of the proceedings and Mrs Carrington two-thirds. Mr Carrington is accordingly required to reimburse Mrs Carrington the sum of $78,398.23 in respect of the sums paid for A's separate legal representation.PART FOUR: SUMMARY AND CONCLUSION[136] As between Mr and Mrs Carrington:(a) In respect of interlocutory applications (as set out in Schedule A) Mrs Carrington is to pay costs to Mr Carrington in the sum of $67,326.00.(b) In respect of interlocutory applications (as set out in Schedule A) Mr Carrington is to pay costs to Mrs Carrington in the sum of $27,256.00.(c) In respect of the general costs of the proceedings (as set out in Schedule B) Mrs Carrington is to pay costs to Mr Carrington in the sum of $152,077.50.(d) In respect of the reimbursement of the legal costs incurred in relation to the minor child A, Mr Carrington is to reimburse costs paid by Mrs Carrington in the sum of $78,398.23.(e) Mrs Carrington is to pay disbursements to Mr Carrington in the sum of $8,810.16.[137] Mrs Carrington is also to pay costs to interested parties B and C in the sum of $76,650.00 together with disbursements of $90.79.Result[138] The net effect of the orders I have made is that:(a) Mrs Carrington is to pay costs and disbursements to Mr Carrington in the sum of $122,559.43.(b) Mrs Carrington is to pay costs and disbursements to interested parties B and C in the sum of $76,740.79.____________________________Katz JSchedule A: Costs in respect of interlocutory applications(Category 3 applies to whole proceedings)ItemDate Description Time AmountApplication by Mrs Carrington dated 21 October 2011 for medical examination ofMr Carrington4.11 10 November 2011 Teleconference with White J C 0.7 $ 1,9464.12 Preparing and filing interlocutoryapplication and supportingaffidavitsC 2 $ 5,5604.14 Preparation for hearing ofdefended interlocutoryapplicationC 1 $ 2,7804.15 1 December 2011 Appearance at hearing ofdefended interlocutoryapplicationC 1 $ 2,7804.16 1 December 2011 Appearance of second counsel C 0. 5 $ 1,390Disbursements $ 725Total to Mrs Carrington: $15,181Application by Mr Carrington dated 7 December 2011 for stay of White J's judgment(re medical examination) pending appeal4.13 Preparing and filing opposition toapplicationC 2 $5,5604.14 Preparation for hearing C 0.5 $1,3904.15 Appearance at hearing C 0.5 $1,3904.16 Appearance of second counsel C 0.25 $ 695Disbursements $ 100Total to Mrs Carrington: $9,135Application by Mrs Carrington dated 6 November 2013 seeking particular discovery11 7 November2013Consent memorandum drafted byMrs Carrington resolving discoveryissues before Katz JC 1 $2,940Total to Mrs Carrington: $2,940Application by Mrs Carrington dated 25 February 2014 seeking interim injunction23 27 February 2014 Notice of opposition C 2 $ 5,88011 27 February 2014 Memorandum C 1 $ 2,94012 28 February 2014 Telephone conference with Katz J C 0.2 $ 58811 20 March 2014 Memorandum for telephoneconferenceC 1 $ 2,94013 21 March 2014 Teleconference C 0.7 $ 2,05824 21 March 2014 Submissions on interim injunction C 1 $ 2,940Total to Mr Carrington: $17,346Application by Mrs Carrington dated 4 March 2014 for leave to amend originatingapplication23 27 February 2014 Notice of opposition C 2 $ 5,88024 27 March 2014 Submissions C 3 $ 8,820Total to Mr Carrington: $14,700Application by Mr Carrington dated 7 March 2014 to strike out proceedings onjurisdictional grounds22 7 March 2014 Application for strike out C 2 $ 5,88024 27 March 2014 Submissions C 3 $ 8,82026 31 March/1 April2014Appearance at hearing C 2 $ 5,88027 31 March/1 April2014Appearance of second counsel C 1 $ 2,940Subtotal to Mr Carrington: $23,520Total (including 50% uplift): $35,280Total to Mr Carrington: $67,326.00Total to Mrs Carrington: $27,256.00Schedule B: General costs of the proceedings (excluding the specificinterlocutory application set out in Schedule A)(Category 3 applies to whole proceeding)# Item Date Description Time Amount1 4.17 29 June 2011 First call with Lang J B 0.2 $ 5562 4.17 7 July 2011 Telephone conferencewith Lang JB 0.2 $ 5563 4.17 23 August 2011 Telephone conferencewith Lang JB 0.2 $ 5564 4.10 30 August 2011 Memorandum by MrCarringtonB 0.4 $1,1125 4.10 7 September 2011 Memorandum by MrCarrington in respect ofamending timetableB 0.4 $1,1126 4.10 12 September 2011 Mr Carrington'smemorandum in reply toMrs Carrington'sopposition tomodification of timetableB 0.4 $1,1127 4.11 14 September 2011 Telephone conferencewith Lang JB 0.3 $ 8348 4.10 27 September 2011 Memorandum byMr Carrington in respectof amending timetableB 0.4 $1,1129 2 27 September 2011 Notice of opposition tooriginating applicationC 6 $16,68010 4.10 27 October 2011 Memorandum byMr Carrington abouttimetable ordersB 0.4 $1,11211 4.17 28 October 2011 Telephone conferencebefore Lang JB 0.2 $ 55612 4.10 24 April 2012 Memorandum byMr Carrington in respectof case managementconference beforeAssociate Judge Bell.C 1 $2,78013 4.11 24 April 2012 Case managementconference withAssociate Judge BellC 0.7 $1,94614 3.6 23 May 2012 Amended notice ofopposition to amendoriginating applicationC 2 $5,56015 20 24 July 2012 Steps taken in relationto discoveryC 7 $20,58016 21 Inspection of documentsby Mr CarringtonC 6 $17,64017 11 3 August 2012 Memorandum by MrCarrington forconference beforeAssociate Judge Bell inrelation to timetabledirections for affidavitsC 1 $2,94018 11 29 October 2012 Memorandum by MrCarrington in respect oftimetable for filing replyevidenceB 0.4 $1,17619 11 30 November 2012 Memorandum by MrCarrington in respect oftimetable for filing ofreply medical evidence.B 0.4 $1,17620 11 4 December 2012 Reply memorandum ofMr Carrington inrespect of timetablingfor filing of replymedical evidenceC 1.0 $2,94021 11 10 December 2012 Memorandum by MrCarrington in respect oftelephone conference onissues agreed and forresolutionB 0.4 $1,17622 13 11 December 2012 Telephone conferencewith Katz JC 0.7 $2,05823 12 14 March 2013 Appearance forinterlocutories beforeKatz JB 0.2 $ 58824 11 8 July 2013 Memorandum by MrCarrington for hearingon 15 July 2013B 0.4 $1,17625 11 10 July 2013 Memorandum byMr Carrington forhearing in respect ofhearing scheduled for15 July 2013B 0.4 $1,17626 11 2 August 2013 Memorandum by MrCarrington for hearingon 5 AugustA 0.2 $ 58827 11 12 August 2013 Memorandum by MrCarrington in respect ofjudicial conference for13 August 2013B 0.4 $1,17628 13 13 August 2013 Conference with Katz J C 0.7 $2,05829 13 7 November 2013 Case managementconference with Katz JC 0.7 $2,05830 9 4 December 2013 Second amended noticeof opposition to secondamended originatingapplication.C 2 $5,88031 13 Preparation for casemanagement conferenceC 0.4 $1,11232 30 Preparation ofbriefs/affidavitsC 5 $14,70033 33 Preparation for hearing C 2 $5,880Subtotal: $121,662.00Total (with 25% uplift): $152,077.50Schedule C: Costs in favour of B and C(Category 3 applies to whole proceedings)# Item Date Description Time Amount1 4.17 29 June 2011 Appearance at call over with Lang JB 0.2 $ 5562 4.17 7 July 2011 Appearance at mentions hearing or call over with Lang JB 0.2 $ 5563 2 27 September 2011 Notice of opposition to originating application and supporting affidavitsB 2 $5,5604 4.11 10 November 2011 Appearance at case management with White JC 0.7 $ 1,9465 4.11 24 April 2012 Appearance at case management conference with Associate Judge BellC 0.7 $ 1,9466 9 October-November 2012Amended notice of opposition and supporting affidavitsB 0.6 $1,7647 13 11 December 2012 Appearance at case management conference with Katz JC 0.7 $ 2,0588 12 14 March 2013 Appearance at mentions hearing or call over with Katz JB 0.2 $ 5889 13 13 August 2013 Appearance at case management conference with Katz JC 0.7 $ 2,05810 13 7 November 2013 Appearance at case management conference with Katz JC 0.7 $ 2,05811 23 27 February 2014 Filing of opposition to interim injunction application (including seven supporting affidavits)C 2 $5,88012 11 20 March 2014 Memorandum for case management conferenceB 0.4 $1,17613 13 21 March 2014 Appearance at casemanagement conferenceB 0.3 $ 88214 24 27 March 2014 Preparation of writtensubmissionsB 1.5 $4,41015 26 31 March/1 April 2014Appearance at hearing C 2 $ 5,88016 13 Preparation for first casemanagement conferenceC 0.4 $ 1,11217 20 List of documents ondiscoveryC 7 $20,58018 21 Inspection of documents C 6 $17,640Total: $76,650