Barry v Carlisle

[2017] NZHC 1666

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CIV 2014-406-000005
CIV 2014-406-000019

CIV 2014-406-000020 [2017] NZHC 1666

BETWEEN

LYNDA ROSE BARRY

Plaintiff

AND

FRANCIS CARLISLE Defendant

Hearing:	On the Papers
Counsel:	S J Zindel for Plaintiff M G Locke for Defendant
Judgment:	19 July 2017

COSTS JUDGMENT OF DOBSON J

[1]      In High Court proceedings, Mr Carlisle successfully defended a claim by the plaintiff Ms Barry for an interest in Mr Carlisle’s property.1   Following judgment in his favour, Mr Carlisle sought a discharge of a caveat on his property and costs in respect of that judgment and other related proceedings.

[2]      On 5 December 2016, by way of minute, I ordered the caveat was to lapse if leave to appeal to the Supreme Court was not obtained by 1 March 2017.  Costs, too, were to be determined following the outcome of any leave decision.

[3]      An order that the caveat lapse was issued on 7 June 2017.  Mr Carlisle now applies for a final order as to costs in this and all related proceedings.

[4]      Three proceedings have been initiated in respect of this matter:

1      Barry v Carlisle [2015] NZHC 1554.

BARRY v CARLISLE [2017] NZHC 1666 [19 July 2017]

(a)      CIV-2014-406-00020  –  Ms  Barry’s  proceeding  under the Property (Relationships) Act 1976, which was discontinued (the PRA proceeding);

(b)CIV-2014-406-000005 –  Ms Barry’s proceeding seeking an order to prevent the lapse of a caveat registered against the title to the defendant’s property (the caveat proceeding); and

(c)       CIV-2014-406-000019  –  Mr  Barry’s  proceeding  seeking  specific

performance of a deed (the substantive proceeding).

[5]      Costs in the caveat proceeding were reserved on 16 March 2014, pending resolution  of  the  substantive  proceeding.2      Costs  in  the  PRA proceeding  were adjourned by Associate Judge Matthews on 15 December 2014, also pending resolution of the substantive proceeding.3

[6]      Brown  J  issued  judgment  in  the  substantive  proceeding  in  favour  of

Mr Carlisle  on  6  July  2015.     His  Honour  then  issued  a  costs  judgment  on

26 November that same year, addressing all three proceedings up to that date.4    In that judgment, his Honour noted Ms Barry was legally aided from 20 March 2015, and thus s 45 of the Legal Services Act 2011 (the Act) prevented Mr Carlisle from obtaining costs in the ordinary way for the entirety of the substantive proceedings. His Honour considered whether exceptional circumstances arose for making a costs order against Ms Barry pursuant to ss 45(2) and (3), and concluded there were not.5

[7]      Brown J determined costs for all three proceedings on a 2B basis, as follows:6

(a) the defendant is entitled to costs in the sum of $9,222.50 in the discontinued PRA proceeding;

(b) there is no order for costs in the caveat proceeding;

(c) the defendant is entitled to costs in the sum of $6,690.00 in the specific performance proceeding;

2      See the reference within the table in Barry v Carlisle [2014] NZHC 3209 at [2].

3      Barry v Carlisle [2014] NZHC 3209.

4      Barry v Carlisle [2015] NZHC 2980.

5 At [20].

6 At [22].

(d) an order that the defendant would have been entitled to an order for costs against the plaintiff in the specific performance proceeding in the further sum of $53,245.00 if s 45 had not affected the plaintiff’s liability.

[8]      Following that order, Ms Barry appealed to the Court of Appeal.  While the Court  dismissed  her  appeal,  the  Court  of  Appeal  declined  to  award  costs  to Mr Carlisle, stating:7

[73]      … The appellant is legally aided so that no costs award may be made against her.  In terms of s 45(5) of the Legal Services Act 2011, but for the grant of legal aid, the Court would have awarded the respondent costs for a standard appeal on a band A basis and reasonable disbursements.

[9]      Ms Barry subsequently applied to the Supreme Court, but leave was refused and costs awarded in favour of Mr Carlisle.8    There is some suggestion that Ms Barry may have attempted or intends to recall that judgment. Whether or not that has been or will be successful, proceedings before the Supreme Court do not prevent the execution of a High Court judgment.9

[10]     Since Brown J’s decision on costs Mr Locke, on behalf of Mr Carlisle, has submitted further memoranda in relation to obtaining an order that the caveat lapse, and as to further costs.  The former may be characterised as an enforcement process, which would fall under item 62 to sch 3 of the High Court Rules 2016. The extent of that entitlement and any relevant disbursements are to be fixed by the Registrar.

[11]     Otherwise,  there  is  nothing  in  subsequent  events  that  would  justify  a departure from, or addition to Brown J’s costs decision. Accordingly, I order costs as per  Brown  J’s  decision  cited  at  [7]  above,  with  the  addition  of  an  order  that Mr Carlisle will be entitled to an order for costs against Ms Barry for item 62 on a

2B basis if it is established that Ms Barry was not in receipt of legal aid at the time.

If she was, then s 45 of the Act will negate Ms Barry’s liability.

Solicitors:

Zindels, Nelson for plaintiff

Lundons Law, Blenheim for defendant

Dobson J

7      Barry v Carlisle [2016] NZCA 551.

8      Barry v Carlisle [2017] NZSC 64.

9      Supreme Court Rules 2004, r 30(1).