Thorpe v Barrett [2018] NZHC 1443 (15 June 2018)

Last Updated: 27 June 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2015-404-001256 [2018] NZHC 1443

BETWEEN	THORPE Plaintiff
AND	BARRETT Defendant

Hearing:	On the papers
Judgment:	15 June 2018

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 15 June 2018 at 4.00 pm

pursuant to R 11.5 of the High Court Rules Registrar / Deputy Registrar Date...........................

THORPE v BARRETT [2018] NZHC 1443 [15 June 2018]

[1] On 5 May 2017, I made costs order against Mr Barrett¹ of $5,623.50 with disbursements of $1,848.63. The order related to Ms Thorpe’s successful appeal against a Family Court decision. I stayed execution of the costs order pending the Family Court setting costs in relation to the first instance hearing. The Family Court subsequently declined to make any award.

[2] Ms Thorpe wishes to seal the costs order and enforce it. Mr Barrett has applied to extend the stay of execution of the order and for leave to appeal both my costs decision and that of the Family Court.

[3] Mr Barrett is significantly out of time to bring an appeal against either of the costs judgments. Because he is unrepresented and has had difficulty following what is required under the High Court Rules I would not penalise him for his delay if there were meritorious grounds for a proposed appeal. However, Mr Barrett has not advanced any arguable basis for either appeal.

[4] The only ground advance for the proposed appeal against my costs order is the financial burden the order would place on him. Mr Barrett’s financial circumstances are not a justifiable ground on which to grant leave to appeal a costs award. Although costs are discretionary, they are invariably determined in accordance with the principles set out at r 14.2 of the High Court Rules and these include that the party who fails should pay costs to the party who succeeds.

[5] In relation to the Family Court costs judgment, the proposed ground of appeal is that, in declining to make any award in Mr Barrett’s favour, the Family Court Judge overlooked the fact that I had stayed execution of my costs order pending the Family Court setting costs so that the respective costs awards could be set off against one another. Mr Barrett perceives the Family Court Judge’s decision as wrongly failing to implement that intention. But the Family Court Judge declined to make any order for costs on the basis that, because Mr Barrett had not succeeded on the appeal the outcome, any costs award been made in the Family Court, would have been set aside

1. Because this is a judgment and will be available publicly I have anonymised the parties’ names in accordance with previous usage.

as well as the substantive judgment. There is no error in that approach and no basis on which to justify leave to appeal.

[6] It follows from these conclusions that there is no basis on which to maintain the stay of execution.

[7] The applications are refused. Ms Thorpe is free to seal and enforce the costs judgment.








P Courtney J