Auton v Auton - [2020] NZHC 1250

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-000144

[2020] NZHC 1250

BETWEEN
ANDREW MYERS AUTON

Applicant

AND

VALERIE BEATRICE AUTON

Respondent

Hearing: Determined on the papers

Counsel:

P N Allan for Applicant

H A Evans and S B Henry for Respondent

Judgment:

8 June 2020

COSTS JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 8 June 2020 at 2.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

AUTON v AUTON Costs Judgment [2020] NZHC 1250 [8 June 2020]

The application for costs

[1] The facts of this case can be found in two judgments. In a judgment of 7 May 2020, I dismissed the applicant’s application to sustain a caveat lodged against a property then owned by the respondent at 47 Aorangi Road, Christchurch. I reserved costs because it was then unknown whether the applicant would be granted legal aid for the proceeding. In a further judgment of 13 May 2020, I discharged an interim order that the judgment of 7 May 2020 be stayed. In relation to that matter, I ordered there would be no costs order.

[2] The applicant has been granted legal aid in this proceeding. Notwithstanding that, the respondent applies for the costs of the proceeding on a 2B basis. The application is opposed by the applicant.

The law

[3] Section 45(2) of the Legal Services Act 2011 (the Act) provides that an order for costs may not be made against a legally-aided person in a civil proceeding unless the court is satisfied there are “exceptional circumstances”.

[4] Under s 45(1) of the Act, the court may make a legally-aided person liable only for an amount that it is reasonable to pay, having regard to all the circumstances including the means of all the parties and their conduct in connection with the dispute.

[5] Under s 45(3) of the Act, there is a list of non-exhaustive factors the court may consider in determining whether there are exceptional circumstances, which are as follows:

(a)any conduct that causes the other party to incur unnecessary cost;

(b)any failure to comply with the procedural rules and orders of the court;

(c)any misleading or deceitful conduct;

(d)any unreasonable pursuit of one or more issues on which the aided person fails;

(e)any unreasonable refusal to negotiate a settlement or participate in alternative dispute resolution; and

(f)any other conduct that abuses the processes of the court.

[6] Under s 45(4) of the Act, any order for costs made against an aided person must specify the amount the person would have been ordered to pay if s 45 had not affected his or her liability.

[7] If, because of s 45 of the Act, no order for costs is made against an aided person, an order may be made specifying that the aided person would have incurred a liability for costs with respect to the proceeding if their liability had not been so affected.1 In…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Auton v Auton

Details

AGLC: Auton v Auton [2020] NZHC 1250
Case: [2020] NZHC 1250
Decision Date: 8 June 2020

CaseChat Overview and Summary

In the High Court of New Zealand Christchurch Registry, the case of Auton v Auton involved a dispute between Andrew Myers Auton and Valerie Beatrice Auton. The applicant, Andrew Myers Auton, had applied to sustain a caveat against property owned by the respondent, Valerie Beatrice Auton, at 47 Aorangi Road, Christchurch. The applicant was granted legal aid, and the matter was determined on the papers. The respondent applied for the costs of the proceeding on a 2B basis, which was opposed by the applicant. The court had to decide whether exceptional circumstances existed to warrant an order for costs against the applicant under section 45(2) of the Legal Services Act 2011.

The court considered the arguments presented by the parties and the relevant legal principles. It examined the conduct of the applicant, including the filing of irrelevant evidence and the pursuit of the caveat and stay applications. The court found that while the applicant's evidence was insufficient and incomplete, the irrelevant material did not significantly contribute to the respondent's costs. The applicant's belief in his entitlement to the property, albeit incorrect, was genuine, and the court did not consider the caveat application to be plainly without merit. The court also noted that the applicant had complied with procedural rules and orders and agreed to an early hearing of the caveat application. The court did not find any exceptional circumstances under section 45(2) of the Act, as the applicant's conduct did not amount to conduct that is quite out of the ordinary.

As the applicant does not oppose the court making an order under section 45(5) of the Act, the court made an order that had it not been for the operation of section 45 of the Act, the applicant would have been liable to the respondent for costs of $11,393. The court dismissed the respondent's application for costs, finding no exceptional circumstances justifying the making of an order for costs against the applicant.

This case highlights the importance of considering the means of the parties, their conduct in connection with the dispute, and the objective of the Legal Services Act to promote access to justice when determining whether exceptional circumstances exist to warrant an order for costs against a legally-aided person. The court's decision in this case serves as a reminder that the outcome of litigation is inherently difficult to predict, and retrospective reasoning based only on the fact that the case turned out to be unsuccessful would not be enough on its own to attract the operation of section 45 of the Act.

Orders