Conroy v Taylor
[2025] NZCA 198
•28 May 2025 at 2.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA659/2024 |
| BETWEEN | HELEN CONROY AS TRUSTEE OF THE HAWKRIDGE DOOLITTLE TRUST |
| AND | CHRISTOPHER GEORGE TAYLOR AND MGH TAYLOR LIMITED AS TRUSTEES OF THE LE ROY TRUST |
| Court: | Courtney and Thomas JJ |
Counsel: | A M E Parlane for Applicant |
Judgment: | 28 May 2025 at 2.30 pm |
JUDGMENT OF THE COURT
AThe application for an extension of time is granted.
BThere is no order as to costs.
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REASONS OF THE COURT
(Given by Thomas J)
Helen Conroy has applied for an extension of time to appeal a High Court costs order made against her on 8 August 2024.[1] Her application is some 70 working days out of time.
Background
[1]Taylor v Conroy [2024] NZHC 2210 [judgment under appeal].
Ms Conroy and her husband, Mr Taylor, purchased a property in Auckland in 2006 as tenants in common in unequal shares through their respective trusts, the Conroy Trust and the Taylor Trust.[2] Mr Taylor died in 2010 and Ms Conroy continued to occupy the property pursuant to a licence to occupy.
[2]The names of these trusts are recorded in their deeds as the Le Roy Trust (Taylor Trust) and the Hawkridge Doolittle Trust (Conroy Trust). The naming of the trusts in this judgment follows the High Court judgments for the sake of clarity.
The trustees of the Taylor Trust (the Taylor Trustees) applied for an order for the sale of the property and division of proceeds under s 339(1) of the Property Law Act 2007 which was granted by Johnstone J on 5 June 2024.[3]
[3]Taylor v Conroy [2024] NZHC 1467.
On 8 August 2024, the Judge ordered Ms Conroy to vacate the property and made directions to enable the sale.[4] The Judge noted that, although Ms Conroy and the professional trustee were sued as trustees of the Conroy Trust, Ms Conroy defended the proceeding alone and therefore acted unreasonably by pursuing her own personal interests as a trustee.[5] He awarded costs against Ms Conroy despite her being legally aided because he considered the circumstances to be exceptional.[6] He allowed the costs to be deducted from the Conroy Trust’s share of the sale proceeds.[7]
[4]Judgment under appeal, above n 1, at [14] and [19].
[5]At [9]–[12].
[6]Legal Services Act 2011, s 45(3); and judgment under appeal, above n 1, at [13] and [18].
[7]Judgment under appeal, above n 1, at [17].
Ms Conroy subsequently submitted that costs could not be deducted from the Conroy Trust’s share of the sale proceeds given that she incurred them unreasonably as a trustee.[8] On 6 September 2024, the Judge issued a minute amending the directions so that costs would not be deducted from the Conroy Trust’s share of the sale proceeds.
[8]Trusts Act 2019, s 81.
Ms Conroy filed a notice of appeal to this Court on 4 October 2024, 41 working days out of time. Katz J issued a minute clarifying that the notice was filed out of time as time ran from the date the orders were made (8 August 2024), not the date of the clarifying minute (6 September 2024).[9]
The application for an extension of time
[9]Katz J stated that the notice of appeal for the minute dated 6 September 2024 was not out of time but noted Ms Conroy did not specify what aspect of the minute was to be appealed.
The grounds relied on by Ms Conroy in support of her application for an extension of time are:
(a)Ms Conroy believed, albeit incorrectly, that the minute issued by Johnstone J on 6 September 2024 was the date from which time for filing an appeal began, rather that the date of the costs order, 8 August 2024.
(b)The delay has not been lengthy.
(c)There is little prejudice to the Taylor Trustees as they had not sought costs against Ms Conroy personally.
(d)The proposed appeal has merit: the High Court erred in law and in fact.
(e)Requiring Ms Conroy to pay costs personally when she is elderly and receiving a sickness benefit would be a “substantial burden” to her.
Ms Conroy submits that it would have been impractical to appeal the earlier ruling as to costs before they were settled. She contends her defence of the application to sell the property was reasonable given she had a licence to occupy and faced the prospect of losing her home. Furthermore, while the Judge found there were exceptional circumstances warranting an award of costs against Ms Conroy despite her being legally aided, he did not refer to longstanding authority on the point or comply with the mandatory requirements under s 45 of the Legal Services Act 2011.[10]
[10]Namely:
(1) If an aided person receives legal aid for civil proceedings, that person’s liability under an order for costs made against him or her with respect to the proceedings 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.
…
(4) Any order for costs made against the aided person must specify the amount that the person would have been ordered to pay if this section had not affected that person’s liability.
Ms Conroy emphasises that, despite what she contends was an error in making the sale order, her proposed appeal is limited to the decision on costs.
Opposition
The Taylor Trustees oppose the application for an extension of time, saying:
(a)The reason for the delay is “incorrect”.
(b)Ms Conroy has failed to act promptly by filing three months out of time.
(c)It is incorrect that the Taylor Trustees did not seek costs against Ms Conroy. The Taylor Trustees had submitted that an order for costs might be attached to Ms Conroy’s interest in the property through her trust, however, it was open to the Court to order costs against her personally.
(d)The Taylor Trustees incurred “substantial and unnecessary costs” because of Ms Conroy’s “unreasonable conduct”.
(e)It is in the interests of justice to decline the application.
(f)Ms Conroy is in breach of the High Court directions by failing to vacate the property. This required the Taylor Trustees incur unreasonable costs by seeking a possession order with which Ms Conroy has since failed to comply.
(g)The proposed appeal lacks merit as costs are discretionary.
The Taylor Trustees submit the subsequent directions of the Judge on 6 September 2024 did not change the amount awarded against Ms Conroy but related only to “the mechanics” of the judgment.
The Taylor Trustees say the finding of exceptional circumstances was because Ms Conroy had engaged in “intentional and obstructive conduct” which resulted in unnecessary expense for the Taylor Trustees. They say the suggested life interest in the licence to occupy is a matter for the Taylor Trustees. There has been no decision regarding this issue and there is no provision in the licence for compensation upon termination.
Relevant legal principles
In Almond v Read, the Supreme Court summarised the principles guiding the discretion of the Court of Appeal to grant or decline an extension of time to appeal under r 29A of the Court of Appeal (Civil) Rules 2005.[11] The ultimate question is what the interests of justice require, in the particular circumstances of the case.[12] Relevant considerations include:[13]
(a)the length of the delay;
(b)the reasons for the delay;
(c)the conduct of the parties, particularly the applicant;
(d)any prejudice or hardship to the respondent or to others with a legitimate interest in the outcome; and
(e)the significance of the issues raised by the proposed appeal, both to the parties and more generally.
[11]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [35]–[40].
[12]At [38].
[13]At [38].
The merits of the proposed appeal may also be relevant, but any consideration of the merits must be relatively superficial.[14]
Analysis
[14]At [39(c)].
The 41 working day delay in filing the notice of appeal is relatively substantial, exacerbated by Ms Conroy’s further delay in filing the application for an extension of time once advised it was required. However, we accept that the delay stemmed from a genuine misunderstanding surrounding the date from which time to file the appeal began. Had the time run from the date of the Judge’s minute dated 6 September 2024, Ms Conroy’s notice of appeal would have been filed within time. Furthermore, guidance was required from this Court as to whether the notice of appeal was in fact out of time in the circumstances.
While Ms Conroy’s liability for costs was not in question in the minutes issued following the costs award, the fact the further directions that were sought by the parties related to the sale and the manner in which costs would be paid gives some weight to Ms Conroy’s belief that the final position on costs was yet to be finalised.
Given Ms Conroy has limited her appeal to the costs award, there would seem no impediment to the sale proceeding and therefore little prejudice to the Taylor Trust. The fact Ms Conroy has failed to comply with orders from the High Court and has resumed occupation of the property, causing further costs to the respondents, has no bearing on the application for an extension of time to appeal the costs award, particularly in circumstances where the proposed appeal would appear to have some merit.
The costs award against Ms Conroy as a legally aided person on a sickness benefit is arguably a “substantial burden”, particularly in circumstances where her current residence is subject to a sale order. As the Judge acknowledged, Ms Conroy acted “perhaps understandably but nevertheless unreasonably” in a manner that sought to prevent the sale of her residence.[15] In assessing exceptional circumstances under s 45 of the Legal Services Act:[16]
[7] The cases are clear on one thing: for circumstances to be exceptional, they must be “quite out of the ordinary”. The court should be cautious not to assess the reasonableness of conduct with the benefit of hindsight.
[15]Judgment under appeal, above n 1, at [12].
[16]Ngati Tama Custodian Trustee Ltd v Phillips [2020] NZCA 252, (2020) 25 PRNZ 465 (footnotes omitted).
The Judge considered s 45(1) but there was no discussion of Ms Conroy’s means. In the circumstances where a costs award is made against a legally aided person, that award must:[17]
… 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.
[17]Legal Services Act, s 45(1).
We conclude the application for an extension of time should be granted. In the circumstances, there is no order as to costs.
Result
The application for an extension of time is granted.
There is no order as to costs.
Solicitors:
Parlane Law, Auckland for Applicant
Pidgeon Judd Law, Auckland for Respondents
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