UNPAID COSTS

Evening Post, Volume CXVIII, Issue 51, 29 August 1934, Page 13

UNPAID COSTS

BAR TO DECREE ABSOLUTE

APPLICATION STOOD OVER

AVhether the Court had power-to. refuse to make a decree nisi absolute on a respondent's motion unless and until tho respondent has paid the petitioner's costs as ordered by the decree nisi is a question Mr. Justice Ostler has just decided in the Supreme Court. His Honour held that the Court has such power.

The petitioner in the suit for divorce w:is Eilcn Irene Dimery and the respondent Arthur Thomas Dimery. On December S, 3933, tho. petitioner (the wife) obtained a decree nisi against tho respondent, which decree provided that it might be made absolute at any time after the expiration of th.reo months from its date, and ordered the respondent to pay the petitioner's costs on the lower scale, witnesses' expenses, and disbursements. On June 7 of this year the respondent filed a motion for tho issue of a decree absolute. The petitioner opposed the motion on the ground that the costs ordered to be paid by tho respondent had not been paid. Section 26 of the Divorce and Matrimonial Causes Act, 1928, said Mr. Justice Ostler, provided that the Court might on the application of the respondnt make the decree nisi absolute. There was no authority on the point in New Zealand, and there could be none in England owing to the differenco in procedure, but in his opinion the Court had power in the exercise of its discretion to refuse respondent's application until he had paid his wife's costs.

".Respondent wishes to take advantage of one part of a decree nisi while not being willing to comply with another part," his Honour continued. "In my opinion the Court has. power in such ;i. "case to compel the party in.default to carry out tho terms of the Court s order before he takes the benefit of it, particularly as the matter of costs is m tho absolute discretion of the Court. The fact that tho respondent has not complied with the decvec nisi, by paying tho costs as therein ordered is, I think, a complete answer to the allegation that, 'no matter in opposition to th<i final deereo is pending.' If the wiro opposes the motion on this ground, then there is matter pending, in opposition to the decree absolute." . His Honour adjourned the application sine die until the costfof the petitioner are paid by tho respondent.