Strauss v Turner [2014] NZHC 1858 (8 August 2014)

Last Updated: 27 September 2014

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV 2013-419-000816 [2014] NZHC 1858

UNDER THE	Property (Relationships) Act 1976
BETWEEN	WILHELM GEORG STRAUSS Appellant
AND	PATRICIA ANN TURNER Respondent

On the papers
Judgment:	8 August 2014

_{COSTS JUDGMENT OF GILBERT J}

This judgment is delivered by me on 8 August 2014 at 11am pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

STRAUSS v TURNER [2014] NZHC 1858 [8 August 2014]

[1] In a judgment delivered on 3 April 2014, I allowed Mr Strauss’ appeal against orders made in the Family Court at Hamilton requiring him to pay compensation pursuant to ss 44C and 44F of the Property (Relationships) Act 1976 in relation to alleged dispositions of relationship property to trusts and qualifying companies.¹

I noted that Ms Turner was legally aided but directed that any application for costs should be made within 21 days.

[2] Mr Strauss now, belatedly, applies for an order for costs pursuant to s 45 of the Legal Services Act 2011. He contends that there are exceptional circumstances in terms of s 45(2) justifying an order for costs despite Ms Turner being in receipt of legal aid. Alternatively, he seeks an order pursuant to s 45(5) specifying the costs to which he would have been entitled had Ms Turner not been legally aided. Ms Turner opposes any order being made.

[3] Mr Strauss contends that the appeal was “clear cut” and should not have been opposed. Further, he contends that Ms Turner acted unreasonably in opposing his application to adduce further evidence in support of the appeal.

[4] The application to adduce fresh evidence on appeal was dealt with by Brown J on 15 November 2013. The Judge noted in his minute that when the matter was called, there was no contest relating to the evidence concerning historical titles. Indeed, it emerged that some of this evidence had been produced in the Family Court such that there was no need for any application to be made. Accordingly, this material was the subject of a consent order. Justice Brown indicated that the other evidence covered by the application was not relevant for the purposes of the appeal and this part of the application was not pursued.

[5] The further evidence was not “fresh” and ought to have been provided at the hearing in the Family Court. I do not consider that Mr Strauss is entitled to costs on his application to adduce this further evidence. I note that this conclusion accords with the view expressed by Brown J that costs on the application should lie where they fall. In any event, I do not consider that the stance adopted by Ms Turner in

relation to this application was unreasonable or could amount to exceptional circumstances for the purposes of s 45(2) of the Legal Services Act.

[6] I accept Mr McArthur’s submission that the outcome of the appeal was inevitable because the particular conclusions reached by the Family Court Judge that were the subject of the appeal could not be sustained on the evidence. However, it does not follow that Ms Turner’s conduct in resisting the appeal was unreasonable or constitutes exceptional circumstances. Ms Williams conceded at the hearing that the relevant findings could not stand and the compensation orders based on them had to be set aside. That was a responsible approach.

[7] It is also important to understand the context when assessing the issue of costs in this case. Mr Strauss chose, as was his right, to represent himself in the Family Court. It is clear from the Family Court judgment that this created real difficulty because Mr Strauss appeared to be unable to comply with Court directions for the provision of documents and other information needed to make a just determination of the issues before the Court. There are numerous references to this in the Family Court judgment but I refer to only some of these to illustrate this

point:²

[1] These relationship property proceedings commenced on 28 October

2009 and were finally heard on 17 April 2013. Despite numerous attempts to obtain appropriate information by discovery no company accounts have been filed by the respondent [Mr Strauss] and there is a dearth of appropriate information upon which the Court can properly rely for appropriate determination of relationship property interests.

[2] At the end of the hearing on 17 April 2013, the respondent was directed to file further bank statements and company accounts at the date nearest the date of separation being 1 November 2008, together with a tally of chattels, many of which were claimed by the respondent as his separate property.

[3] The information subsequently received by the Court was in the Court’s determination insufficient and therefore on 16 May 2013 a further Minute was issued warning the respondent that if he did not comply fully with the directions then an accountant might be appointed to investigate at the respondent’s cost.

...

[6] I subsequently received the file which indicated that the respondent had filed a further substantial affidavit annexing to it copies of bank accounts and other documents not in compliance with my earlier directions and in particular no company accounts have been provided. An affidavit however, had been filed by the applicant indicating that she believed that a forensic accountant should be able to assist the Court, but it was her view that the respondent would not provide the accountant with any correct information and nor would he pay for the investigation of the same. I determine that this opinion is correct and therefore have proceeded to determine this matter on the information provided, as further delays are unacceptable.

...

[8] With respect to the respondent, he had been advised on a number of occasions to obtain the services of a lawyer but has not done so, which is his right. However, the issues involved are complex and beyond the ability of most lay-people to understand these involved in family trusts and companies and the provision of appropriate information to the Court.

[9] Accordingly the Court can only do the best it can on the inadequate information with which it has been provided.

[8] It is clear from reading his judgment as a whole that the learned Judge did his best to achieve a just outcome despite the unsatisfactory state of the evidence and the inadequate information provided by Mr Strauss. This is what led to the compensation orders that ultimately could not withstand scrutiny, particularly in the light of the further information available to the Court when the appeal was heard. It seems to me that it would be quite unjust to compensate Mr Strauss for the costs he incurred on the appeal given that the errors made in the Family Court were a direct consequence of his failure to provide relevant information in breach of Court orders.

[9] In all of the circumstances, I decline to make any order pursuant to s 45 of the Legal Services Act. I consider that the interests of justice will be served by directing that costs on the appeal, including the application to adduce further evidence, are to

_{lie where they fall. I make an order accordingly.}

M A Gilbert J