Barry v Carlisle - [2015] NZHC 2980

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

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

CIV 2014-406-000020 [2015] NZHC 2980

BETWEEN
LYNDA ROSE BARRY

Plaintiff

AND

FRANCIS CARLISLE Defendant

Hearing: On Papers

Counsel:

S J Zindel for Plaintiff
M G Locke for Defendant

Judgment:

26 November 2015

COSTS JUDGMENT OF BROWN J

[1] This judgment addresses costs in three different proceedings involving the parties, namely:

(a) CIV-2014-406-20 – a proceeding brought by the plaintiff under the

Property (Relationships) Act 1976, which was discontinued.

(b)CIV-2014-406-5 – a proceeding brought by the plaintiff seeking an order to prevent the lapse of a caveat she had registered against the title to the defendant’s property to preserve her rights pending the disposition of the specific performance proceeding.

(c) CIV-2014-406-19 – the plaintiff’s proceeding seeking specific performance of a deed, which was the substantive proceeding that ultimately proceeded to trial on 4 to 8 May 2015 and which was
determined in my Judgment dated 6 July 2015.

BARRY v CARLISLE [2015] NZHC 2980 [26 November 2015]

[2] The related nature of the proceedings is demonstrated in the following

succinct chronology:

August 2013

The plaintiff commenced a proceeding under the Property (Relationships) Act 1976 (the PRA) in the Blenheim   Family Court (which later became CIV-2014-406-20).

August 2013 to

August 2014

The defendant filed 13 affidavits in opposition to the CIV-2014-406-20 proceeding deposing to the absence of any qualifying de facto relationship under s 4C of the PRA.

3 February 2014

The plaintiff lodged a caveat against the defendant’s property based on her claim to an interest under the deed (the subject of the CIV-2014-406-19 proceeding).

4 March 2014

The plaintiff filed the CIV-2014-406-5 proceeding seeking an order that the caveat not lapse.

13 March 2014

The High Court made an order that the caveat not lapse on the basis that the plaintiff would file proceedings in relation to the deed no later than 11

April 2014.   Costs in the caveat proceeding were reserved.

8 April 2014

The plaintiff filed the proceeding CIV-2014-406-19.

23 April 2014

The   PRA proceeding   was   transferred   to    the

Blenheim High Court.

4 November 2014

A notice of discontinuance of the CIV-2014-406-20 proceeding was filed.

15 December 2014

Costs judgment of Associate Judge Matthews.

4-8 May 2015

Trial in Blenheim High Court of CIV-2014-406-19 proceeding.

6 July 2015

Judgment in CIV-2014-406-19 proceeding.

[3] The plaintiff initially applied for legal aid in September 2014 and was eventually granted legal aid on 20 March 2015. Consequently the defendant requests the Court to:

(a) Fix costs against the plaintiff personally in respect of the period prior to the date of her application for legal aid.

(b)Find extraordinary circumstances and fix costs against the plaintiff for the period in respect of which she was legally aided or such part thereof as the Court may consider just.

(c) In the event that the Court declines to grant (b) above, to fix the costs that would have been awarded against the plaintiff if she had not been legally aided so that…

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 Barry v Carlisle

Details

AGLC: Barry v Carlisle [2015] NZHC 2980
Case: [2015] NZHC 2980
Decision Date: 26 November 2015

CaseChat Overview and Summary

Lynda Rose Barry initiated proceedings against Francis Carlisle in three separate cases, all of which involved claims related to property and a de facto relationship. The first case (CIV-2014-406-20) was brought under the Property (Relationships) Act 1976, but was discontinued. The second case (CIV-2014-406-5) sought an order to prevent the lapse of a caveat registered against Carlisle's property. The third case (CIV-2014-406-19) sought specific performance of a deed and was the primary proceeding that went to trial. The court was required to determine the costs associated with each of these proceedings, particularly in light of Barry's application for legal aid during the litigation.

The legal issues centered around the principles governing the award of costs, especially in relation to legal aid recipients under the Legal Services Act 2011. Specifically, the court had to decide whether there were exceptional circumstances justifying an order for costs against Barry during the period she was legally aided, and if not, what the costs would have been if she had not been legally aided.

The court concluded that exceptional circumstances were not present to warrant an order for costs against Barry during her period of legal aid. Although the specific performance claim was ultimately unsuccessful, the court found that Barry's conduct did not rise to the level of exceptional circumstances as required by the Legal Services Act 2011. The court did, however, order that Barry would have been liable for costs in the specific performance proceeding if not for her legal aid status. The costs were quantified at $6,690.00 for the period before Barry's application for legal aid and an additional $53,245.00 for the period during which she was legally aided.

The final orders were that Carlisle was entitled to costs of $9,222.50 in the discontinued PRA proceeding, no costs were awarded in the caveat proceeding, $6,690.00 in the specific performance proceeding, and an order that Carlisle would have been entitled to an additional $53,245.00 in the specific performance proceeding if Barry had not been legally aided.

Orders