Brown v Akulinin

[2020] NZHC 1519

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B,

11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

https://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-2384

[2020] NZHC 1519

UNDER

the Property (Relationships) Act 1976

IN THE MATTER

of an appeal from a decision of the Family Court at Auckland on 25 September 2019

BETWEEN

NATALIA ALEXANDROVNA BROWN

Appellant

AND

OLEG FATEEVICH AKULININ

Respondent

Hearing:	On the papers
Counsel:	J M Gandy for the appellant B D Hayes for the respondent
Judgment:	1 July 2020

JUDGMENT OF JAGOSE J

[Costs]

This judgment was delivered by me on 1 July 2020 at 2.00pm.

Pursuant to Rule 11.5 of the High Court Rules

………………………… Registrar/Deputy Registrar

Counsel/Solicitors:

B D Hayes Barrister, Auckland Thomas & Co, Auckland

BROWN v AKULININ - Costs [2020] NZHC 1519 [1 July 2020]

[1]                 My 20 May 2020 judgment took the preliminary view Natalia, as the successful party, was entitled to 2B costs. If that was not accepted by the parties, and could not otherwise be agreed between them, costs were reserved.1

[2]                 Natalia seeks 2B costs and disbursements totalling $15,028.10. As an aided person receiving legal aid for civil proceedings, Oleg generally is immune from liability for any order for costs in the proceeding.2 Such liability in any event:

… must not exceed an amount (if any) that is reasonable for the aided person to pay having regard to all the circumstances, including the means of all the parties and their conduct in connection with the dispute.

[3]                 No order for costs may be made against Oleg unless I am satisfied there are exceptional circumstances. In determining if there are exceptional circumstances I may take account also of unnecessary, non-compliant, misleading or deceitful, unreasonable or otherwise abusive conduct by him. Any order for costs against Oleg must specify the amount he would otherwise have been ordered to pay. If no order for costs is made, an order may be made specifying what costs would have been ordered had his liability not been affected by the above.

[4]                 Apart from the grant of legal aid to Oleg, I know nothing of Natalia’s or Oleg’s means, particularly given the “evidential deficiencies” in the substantive case; neither can I identify anything in their conduct with material bearing on the issue of costs. Although Natalia argues the Judge’s error “should have been abundantly clear”, Oleg nonetheless had the benefit of the Judge’s finding, which Natalia needed to overturn. She cannot do that by consent, even if it had been forthcoming. Oleg’s conduct as respondent in the appeal was not ‘exceptional’ such as may render him liable to a costs order; he made sensible concessions, but pressed arguments that remained available.

The belated grant of legal aid to Oleg nonetheless is retrospective.3

[5]                 Without exceptional circumstances, I therefore do not make any costs order against Oleg.

1      Brown v Akulinin [2020] NZHC 1061 at [24]–[25].

2      Legal Services Act 2011, s 45; see Laverty v Para Franchising Ltd [2006] 1 NZLR 650 (CA).

3      Carter v Western Viaduct Marine Ltd (2003) 16 PRNZ 1034 (HC) at [25].

[6]                 I order, but for Oleg’s immunity, I would have ordered he was liable to pay Natalia 2B costs of $14,430, and disbursements of $598.10.

—Jagose J