Clark v Tahana

[2014] NZHC 3022

NOTE: PURSUANT TO S 169 OF THE FAMILY PROCEEDINGS ACT 1980, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO

11C OF THE FAMILY COURTS ACT 1980.  FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-002022 [2014] NZHC 3022

IN THE MATTER

of the Estate of WILLIAM JOHN

BURLING

BETWEEN

ANNE CLARK Appellant

AND

ROBERTA CHARMAINE TAHANA (in her capacity as Guardian for WILLIAM THEOPHILUS NOAH BURLING) Respondent

Hearing:	(On the papers)
Counsel:	Scott McKenna for Appellant Grant Litchfield and Vance Leach for Respondent
Judgment:	28 November 2014

RESERVED JUDGMENT OF MOORE J [Costs]

This judgment was delivered by  on 28 November 2014 at 4:30pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

CLARK v TAHANA [2014] NZHC 3022 [28 November 2014]

[1]      On 7 November 2014 I delivered my judgment in relation to this matter.  I dismissed the appeal and I found in favour of Ms Tahana in her capacity as guardian for William Theophilous Noah Burling.  I reserved the question of costs and invited the parties to file submissions.

[2]      Ms Tahana is legally aided.  Under s 45(2) of the Legal Services Act 2011 no award for costs may be made against an aided person in civil proceedings unless the Court is satisfied that there are exceptional circumstances.

[3]      Mr  Litchfield,  for  Ms  Tahana,  responsibly  concedes  that  there  are  no exceptional circumstances engaged by this appeal but seeks the payment of her actual costs of $2,564.68 which is considerably less than the $4,950 which is the sum calculated on a 2B basis.  Mr McKenna submits that given there are no exceptional circumstances  it  would  not  be  appropriate  to  award  costs  against  Ms Clark personally.   He further notes that she is a retired beneficiary with no significant assets and would have great difficulty satisfying any award of costs.  He submits that the successful appellant’s costs should be met by the estate.

[4]      I agree.

Result

[5]      The respondent is entitled to costs in the sum of $2,564.68 and reasonable disbursements as fixed by the Registrar.

[6]      These are to be paid from the estate.

Moore J

Solicitors:
Forgeson Law, Te Kuiti
Franklin Law Limited, Pukekohe