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Byakova v Cherry [2020] NZFC 11099

Published 19 May 2021

Costs — relationship property dispute — transfer of proceedings — disclosure — Property (Relationships) Act 1976, s 40 — Family Court Rules 2002, r 207 — District Court Rules 2014, r 14.2, 14.6 —A v A [1999] NZFLR 447 — H v A [costs] (2002) 22 FRNZ 447 — R v S [guardianship] (2003) 22 FRNZ 1017 — T D P v S J C [costs] (2011) NZFLR 241. The applicant, having been successful in her relationship property application, sought costs against the respondent under s 40 of the Property (Relationships) Act ("PRA"). A court has unfettered discretion to make an award on a principled and reasonable basis taking into account the object and principles of the Act under which the costs application is made. Other factors that can be taken into account include the issue of nature of the dispute, outcome, conduct of parties, means of the parties, actual costs incurred and overall interests of justice. Rule 14.2 of the District Court Rules sets out principles applying to the determination of costs. The applicant in this case was legally aided for most of the proceedings, and submitted she should receive costs for the full amount of the legal aid services, and that she should be entitled to her pre-legal aid costs on a category 2B basis. The purpose of the PRA is to recognise the equal contributions of both spouses to a relationship and to provide for the just division of relationship property. The principles include equality of all forms of contribution, and that proceedings should be resolved as speedily and inexpensively as possible. The issues which were determined were the length of the relationship, inappropriate disposition of relationship property, and the exception to equal sharing. The respondent had been unsuccessful on all issues. It was noted too that the applicant had attempted to engage the respondent in resolving the dispute out of court, but all attempts had been rebuffed, the end result being that the applicant received more than she had initially proposed. There had been some issues with disclosure issues by both parties during the course of the proceedings. Both parties were of limited means. The actual costs incurred by the applicant were $44,270,07. There was no doubt that the respondent's actions had increased the cost of litigation. The Judge determined that it was appropriate to make an award of costs in the circumstances. The Judge made an order for $18,796.10 in favour of the applicant, being 42.4 per cent of the actual costs. Judgment Date: 1 December 2020.