Thompson v Thompson [2015] NZCA 228 (10 June 2015)

Last Updated: 23 June 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
CA 701/2013 CA711/2013 [2015] NZCA 228
BETWEEN	MICHAEL LEITH THOMPSON Appellant
AND	CHRISTINE HAMILTON THOMPSON First Respondent MICHAEL LEITH THOMPSON, DEAN ALAN ELLWOOD AND BRUCE KENNETH DELL AS TRUSTEES OF THE M L THOMPSON FAMILY TRUST Second Respondents

Court:	Randerson, Stevens and Miller JJ
Counsel:	Lady D A T Chambers QC for Appellant S Ambler for First Respondent P A Tesiram for Second Respondent
Judgment: (On the papers)	10 June 2015 at 12:30 pm

JUDGMENT OF THE COURT
(Costs following the judgment of the Supreme Court)

1. The appellant must repay to the first respondent costs of $15,435.00 and the overpayment of $91.05.
2. The appellant must pay to the first respondent costs for the substantive appeal amounting to $13,377.00.

100. We decline the first respondent’s application for an order reversing the costs payable to the appellant for the stay appeal.

4. We order that the appellant pay the first respondent disbursements of $1,786.38.

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REASONS OF THE COURT

(Given by Randerson J)

[1] On 13 March 2015 the Supreme Court allowed the appeal by the first respondent Mrs Thompson from our judgment of 8 April 2014.^[1] The Supreme Court ordered that costs and disbursements in respect of the proceedings in the Family Court, High Court and Court of Appeal be fixed by those Courts respectively.
[2] In our costs judgment of 18 June 2014 we ordered:^[2]

• (a) Mrs Thompson was to pay the appellant Mr Thompson $15,435 for costs on the substantive appeal and $6,467.50 for costs on an associated appeal against an order for a stay of execution made in the High Court.
• (b) Mrs Thompson was to pay to Mr Thompson usual disbursements in respect of each appeal.

[3] In consequence of the Supreme Court judgment, Mrs Thompson seeks the following orders:

• (a) An order requiring Mr Thompson to reimburse to her costs of $21,902.50 and an additional sum of $91.05 in respect of an overpayment of interest on the amount paid into court for security for costs.
• (b) Costs of $13,377 on the substantive appeal.
• (c) Costs of $1,990 on the stay appeal.
• (d) Disbursements of $1,786.38.

[4] Through counsel, Mr Thompson takes the following position:

• (a) He agrees to an order for repayment as per [3](a) above, in relation to the costs for the substantive appeal of $15,435 and the overpayment of $91.05.
• (b) He agrees that Mrs Thompson is entitled to costs on the substantive appeal but he says that only 50 per cent of the sum claimed should be awarded, relying on r 53F(d) of the Court of Appeal (Civil) Rules 2005. This rule confers a discretion on the Court to reduce costs where a party fails on an issue that has resulted in a significant increase in costs for the opposite party.
• (c) He disputes that Mrs Thompson is entitled to any award of costs on the stay appeal and says the award in his favour should not be disturbed.
• (d) He makes no submissions about the disbursements claim of $1,786.38.

[5] We address first Mr Thompson’s submission that Mrs Thompson should receive only 50 per cent of the costs otherwise payable on the substantive appeal. This submission is advanced on the basis that Mrs Thompson’s primary argument in this Court was whether the sum paid for the restraint of trade at issue was relationship property. Her alternative argument, based on the application of s 9(4) of the Property (Relationships) Act 1976, occupied less hearing time. In the end, Mrs Thompson was unsuccessful in her claims on the first issue both in this Court and in the Supreme Court. She succeeded in the Supreme Court only on the alternative argument under s 9(4).
[6] We are not persuaded that a reduction in the costs otherwise payable to Mrs Thompson is appropriate on this ground. Viewed in the round, we are not persuaded that Mrs Thompson’s failure on the first issue significantly increased the costs payable by Mr Thompson. It was necessary and appropriate that both issues be determined and the factual background was applicable to both issues.
[7] As to costs on the stay appeal, we found there was no basis upon which the stay of execution in the High Court should have been issued. There was no application for leave to appeal to the Supreme Court on that issue. We accept the submission made on Mr Thompson’s behalf that he remains entitled to the costs orders made on that appeal.
[8] Accordingly we make the following orders:

• (a) The appellant must repay to the first respondent costs of $15,435.00 and the overpayment of $91.05.
• (b) The appellant must pay to the first respondent costs for the substantive appeal amounting to $13,377.00.
• (c) We decline the first respondent’s application for an order reversing the costs payable to the appellant for the stay appeal.
• (d) The appellant pay the first respondent disbursements of $1,786.38.

Solicitors:
Turner Hopkins, Auckland for Appellant
Tompkins Wake, Hamilton for First Respondent
TGT Legal, Auckland for Second Respondents

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^[1] Thompson v Thompson [2015] NZSC 26, [2015] NZFLR 150 rev’d Thompson v Thompson [2014] NZCA 117, [2014] 2 NZLR 741.

^[2] Thompson v Thompson [2014] NZCA 247.