Christine Jill Bourneville v Michael Victor Bourneville Recall

[2009] NZSC 19

NO PUBLICATION OF THIS PROCEEDING IS PERMITTED UNDER S35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, EXCEPT WITH THE LEAVE OF THE COURT THAT HEARD THE PROCEEDINGS, AND WITH THE EXCEPTION OF PUBLICATIONS OF BONA FIDE PROFESSIONAL OR TECHNICAL NATURE.

IN THE SUPREME COURT OF NEW ZEALAND

SC 1/2009
[2009] NZSC 23

BETWEENCHRISTINE JILL BOURNEVILLE

Applicant

ANDMICHAEL VICTOR BOURNEVILLE

Respondent

Court:Elias CJ, Blanchard and Tipping JJ

Counsel:A Hart for Applicant

B P C Carter for Respondent

Judgment:26 March 2009 

JUDGMENT OF THE COURT (RECALL APPLICATION)

A        The judgment delivered on 17 March 2009 is recalled.

B        The orders of the Court are amended and will now read:

The application for leave to appeal is dismissed.  No order for costs is made against the applicant who is legally aided.  Under s 40(5) of the Legal Services Act 2000 it is specified that an order for costs of $2,500 would have been made against the applicant with respect to the application for leave if s 40 had not affected the applicant’s liability.

REASONS

[1]       After the Court’s judgment dismissing the leave application was delivered, the Registrar was advised that the applicant had been granted legal aid in respect of her application.  Section 40(2) of the Legal Services Act 2000 prohibits an order for costs against an aided person unless there are exceptional circumstances.  Not without some hesitation, we have concluded that exceptional circumstances do not exist.  We are substituting an order under s 40(5).

Solicitors:
Parnell Law, Auckland for Applicant
McWha Law, Auckland for Respondent