Van Wijk v Westra [2019] NZHC 1840 (2 August 2019)

Last Updated: 8 August 2019

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY I TE KŌTI MATUA O AOTEAROA TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2019-463-0005 [2019] NZHC 1840

BETWEEN	PAULINE VAN WIJK Appellant
AND	ERIK JOHN WESTRA Respondent

On the papers:	at Rotorua
Judgment:	2 August 2019

JUDGMENT OF POWELL J

[Costs]

This judgment was delivered by me on 2 August 2019 at 10 a.m. pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors: Tompkins Wake, Rotorua

Holland Beckett Law, Rotorua

Copy for: Appellant

VAN WIJK v WESTRA [2019] NZHC 1840 [2 August 2019]

[1] The respondent, Erik Westra, seeks costs against the appellant, Pauline van Wijk, after Ms van Wijk discontinued her appeal against a Family Court parenting order after legal aid was refused.

[2] Mr Westra seeks costs on a 2B basis on both the appeal and the application for costs. Ms Ambler, for Mr Westra, notes various procedural irregularities at the time the appeal was filed by Ms van Wijk. She goes on to submit it was not reasonable for Ms van Wijk to bring or continue the appeal, and that her conduct prior to the proceeding commencing was unreasonable. As a result, Mr Westra seeks $4,014.00 on the appeal itself and a further $1,115.00 plus the sealing fee of $446.00 on the application for costs.

[3] In response, Ms van Wijk does not take issue with the calculation but denies unreasonably commencing and prosecuting the appeal noting that it was only abandoned when she was not able to access legal aid. On the contrary she submits that the Family Court orders were contradictory and submits that an award of costs will lead to significant hardship, on top of other significant debts she is currently paying off.

Legal principles

[4] The starting point for costs in this case is r 15.23 of the High Court Rules 2016 which provides:

Unless the defendant otherwise agrees or the court otherwise orders, a plaintiff who discontinues a proceeding against a defendant must pay costs to the defendant of and incidental to the proceeding up to and including the discontinuance.

[5] The authorities make it clear that the Rule establishes a presumption for costs on a discontinuance which may be displaced if the Court finds there are circumstances which make it just and equitable that costs should not be paid.¹

1. McGechan on Procedure (online loose-leaf edition) at [HR15.23.01], citing Krama Colour Prints Ltd v Tridonicatco NZ Ltd [2008] NZCA 150, (2008) 18 PRNZ 973; FM Custodians Ltd v Pati [2012] NZHC 1902 at [10]- [12] and Opus International Consultants Ltd v Colac Bay Vision Ltd [2015] NZHC 1782, [2015] NZCCLR 19 at [20]- [24].

[6] In addition, as Ms Ambler notes, generally:²

(a) The Court will not consider the merits of the respective cases, unless they are so obvious that they should influence the costs outcome.

(b) The Court will consider the reasonableness of the stance of both parties: whether it was reasonable for the plaintiff to bring and continue the proceeding, and for the defendant to oppose the proceeding up to the point of discontinuance.

(c) Conduct prior to the commencement of the proceeding may be relevant (for example, if any conduct by a defendant precipitated the litigation), as may be the reason for discontinuing (for example, a change of circumstances rendering the proceeding unnecessary).

Discussion

[7] Having reviewed the file it is clear that there is little, other than the presumption of costs in r 15.23, to warrant an award of costs in this case. First, it is difficult to see why Ms van Wijk’s conduct prior to the commencement of the appeal would be relevant: it is not Ms van Wijk’s conduct that has precipitated the appeal, rather it was the judgment of the Family Court and Ms van Wijk is entitled as of right to bring the appeal. Secondly, having looked at the file I am not satisfied the merits are so clear cut as to be able to influence the costs outcome.

[8] In addition, the various procedural defects identified by Mr Westra at the time the appeal was filed do not appear to have resulted in any additional costs to Mr Westra, and the appeal was otherwise proceeding towards a hearing in an orderly fashion until the discontinuance was filed. The proceedings had not however got to a point where significant work was required from the respondent, and it is noted that the possibility of a discontinuance was foreshadowed when Mr Braithwaite accepted

2. McGechan on Procedure (online looseleaf ed) at [HR 15.23.01], citing Kroma Colour Prints Ltd v Tridonicatco NZ Ltd [2008] NZCA 150, (2008) 18 PRNZ 973 and FM Custodians Ltd v Pati [2012] NZHC 1902 at [10]- [12].

instructions on behalf of Ms van Wijk, noting his appointment was conditional on legal aid being granted.

[9] Against those considerations, the information provided by Ms van Wijk as to her ability to pay an award of costs appears somewhat incomplete. In addition, whether costs should be fixed is a different issue than whether the award will be enforced.

[10] Taking all these matters into account, I am satisfied that a modest award of costs is appropriate on the discontinuance and I fix this at $2,500.00, plus the sealing fee of $446.00.

Decision

[11] Ms van Wijk is to pay Mr Westra the sum of $2,946.00.








Powell J