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Mayer v Mayer [2017] NZFC 3924

Published 03 November 2017

Reserved decision — costs upon discontinuance — discontinuance of proceedings — jurisdiction — Property (Relationships) Act 1976, s 40 — Family Court Ruiles 2002, r 207 — District Court Rules, rr 14. 2 - 14.1, 15.202— Ormsby v van Selm [2015] NZHC 641 — Ryde v Earthquake Commission [2014] NZHC 2763 — Prebble v Awatere-Huata (No 2) [2005] 2 NZLR 467. Proceedings were filed in the Family Court under the Property (Relationships) Act. The court had raised a query as to whether the Family Court held jurisdiction to hear the matter, or whether it was more appropriate to be heard in the District Court's Civil jurisdiction. The proceedings in the Family Court were discontinued, and the court found that it was appropriate for costs to be determined in the court in which the proceedings had been filed. The court had regard to the decision of "Ormsby" which made clear that unless reasons to the contrary were made out, costs applications under the Property (Relationships) Act should be determined under the District Courts Rules. The court examined the District Courts Rules, the Family Court Rules, and available case law, the court determined the guiding factors that it should have regard to in the exercise of costs discretion. Taking the approach in "Ryde" the court considered whether it was reasonable to bring and defend the proceeding, the reason for discontinuation, whether the merits of the case were so obvious that they should influence the costs outcome, and whether the outcome of the proceedings vindicated the applicant The court found that the discontinuance merited an award of costs, and that the applicant had not brought proceedings in a malicious or frivolous way, but instead had been brought genuinely but in the wrong court. The court also found that the respondent had failed to raise the issue of jurisdiction and as a result there was a level of mutual responsibility for a portion of costs of the proceeding. The court ordered the applicant pay a costs contribution of $2,000 to the respondent. Judgment Date: 26 May 2017.