MULVAY V KOENEN HC AK CIV 2007-404-004101
The court held that costs should follow the event and be payable by the appellant to the respondent following the notice of discontinuance, but indemnity costs were not justified because the appellant's conduct was not sufficiently flagrant or unreasonable; costs are to be assessed on a 2B basis by the Registrar.
Source-derived case information.
- Citation
- openlaw-c9f8b535_bf16_47bd_8df5_57a095823082.pdf
- Parties
- Appellant: Zarnya Vashti Mulvay; Respondent: Jason Anthony Koenen
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 7 December 2007
- Procedural Posture
- Appeal From Family Court / Discontinued Appeal With Costs Application Before High Court
- Outcome
- Costs awarded to respondent; indemnity costs refused; costs to be assessed on 2B basis by the Registrar
- Legal Topics
- Child Custody and Care Arrangements, Schooling Directions, Costs of Discontinued Appeal, Indemnity Costs, 2 B Costs Scale
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zarnya Vashti Mulvay
Appellant
Jason Anthony Koenen
Respondent
Procedural Posture
Appeal From Family Court / Discontinued Appeal With Costs Application Before High Court
Legal Issues
- 1 Whether costs should be awarded to the respondent following discontinuance of the appeal
- 2 Whether indemnity costs were warranted against the appellant for the discontinued appeal
- 3 Appropriate basis and quantum for costs (2B scale and Registrar assessment)
Ratio Decidendi
The court held that costs should follow the event and be payable by the appellant to the respondent following the notice of discontinuance, but indemnity costs were not justified because the appellant's conduct was not sufficiently flagrant or unreasonable; costs are to be assessed on a 2B basis by the Registrar.
Court Disposition
Costs awarded to respondent; indemnity costs refused; costs to be assessed on 2B basis by the Registrar
Orders
- Costs payable by the appellant to the respondent following the notice of discontinuance
- Costs to be assessed on a 2B basis and calculated by the Registrar
Full Case Text
Judgment text and source record
1 paragraphs
MULVAY V KOENEN HC AK CIV 2007-404-004101 7 December 2007IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2007-404-004101BETWEEN ZARNYA VASHTI MULVAY Appellant AND JASON ANTHONY KOENEN Respondent Hearing: Determined on the papers Judgment: 7 December 2007JUDGMENT OF ASHER JThis judgment was delivered by me on 7 December 2007 at 10:00 am pursuant to Rule 540(4) of the High Court Rules .. Registrar/Deputy Registrar .. DateSolicitors: Rennie Cox, PO Box 6647 Auckland Gubbs Lawyers, PO Box 5530 Wellesley Street Auckland (VA Crawshaw) Copy: P Cobcroft, Barrister, PO Box 47 345 Ponsonby Auckland[1] In the course of attending to matters arising in the Appeals List, an issue has arisen as to whether costs should be awarded in favour of Jason Koenen against Zarnya Mulvay for a discontinued appeal. [2] The appeal was against an oral judgment in the Family Court at Waitakere making certain detailed directions as to the schooling of the parties' child, Hayden, and consequential changes to his care arrangements. Last month Mr Koenen withdrew his instructions to his previous counsel. Mr Newfield, the instructing solicitor, with his usual courtesy, has sought leave to withdraw on behalf of himself and Mr Knight, the previous counsel, which is granted. [3] Ms Crawshaw for Mr Koenen seeks indemnity costs. She submits that Ms Mulvay's appeal had no chance of success and had procedural flaws. She points to the fact that by letter of 26 July 2007 she invited Ms Mulvay to withdraw. She submits that because the appeal was against a discretionary decision it could not have succeeded. [4] Ms Cobcroft, the new counsel for Ms Mulvay, submits that the appeal was reasonably lodged. Since then and following her retainer a conference has taken place between the parties, which has resulted in a compromise. She refers to some matters which indicate that her client cannot afford to pay a substantial costs order. [5] I consider that costs should follow the event in the usual way, and an award for costs payable by the appellant to the respondent should follow the notice of discontinuance. This is not, however, one of those unusual cases where the conduct of the appellant has been sufficiently flagrant or unreasonable as to warrant an award of indemnity costs. Costs will be payable on a 2B basis to be calculated by the Registrar... Asher J