Emslie v Walker

[2022] NZHC 63

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2021-441-59

[2022] NZHC 63

IN THE MATTER OF

an application pursuant to s 143 of the Land Transfer Act 2017 that Caveat 1216093.1 not lapse

BETWEEN

MARIAN FAULKNER EMSLIE

Applicant

AND

IAN MARK WILFRID WALKER

Respondent

Hearing:	On the papers
Appearances:	M J Wenley for Applicant J L Bates for Respondent
Judgment:	1 February 2022

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[Costs]

[1]                  In my judgment of 30 November 2021 I made an order in favour of the applicant, Marian Emslie, sustaining a caveat that Mrs Emslie had registered over a property in Napier.1 That application had been opposed by Mr Walker, Mrs Emslie’s son, who is the registered owner of the property pursuant to arrangements the parties entered into many years ago.

[2]                  At the conclusion of my judgment I reserved costs observing that my preliminary view was that the applicant as the successful party was entitled to an order

1      Emslie v Walker [2021] NZHC 3230.

EMSLIE v WALKER [2022] NZHC 63 [1 February 2022]

of costs on a 2B basis. I invited counsel to resolve the costs issue. They have not been able to do so.

[3]                  On behalf of Mrs Emslie Mr Wenley seeks costs. He informs the Court that Mrs Emslie is legally aided. She has received one grant of legal aid in respect of both the caveat application and the substantive proceeding, that she must now pursue in order to maintain her proprietary claim. Mr Wenley contends that 2B costs are appropriate. He has calculated these at $11,352.50 which appears to me to be correct. There are also some disbursements. The total amount of the claim inclusive of both costs and disbursements is $11,843.50.

[4]                  On behalf of Mr Walker Mr Bates opposes any costs order being made at this stage. He accepts that costs should follow the event in the usual way. He submits, however that as a legally aided litigant the applicant is obliged to identify the allocation of costs allowed by legal aid authorities down to the conclusion of the hearing of her application. Mr Bates submits that this has not been done despite correspondence between counsel.

[5]                  I accept Mr Bate’s submission that the amount of the legal aid award is relevant. As he submits r 14.2(1)(f) of the High Court Rules provides that no order for costs should exceed the costs actually incurred, and as Mr Bates also submits, in Taunoa v Attorney General2 this Court said in effect that where the party entitled to costs is legally aided the award of costs should not exceed the amount of the grant, a conclusion that was later confirmed in Graham v Graham.3

[6]                  Mr Bates refers to other authorities, but the position appears to emerge clearly enough from Taunoa and Graham.

[7]                  The purpose of the rule of course is to ensure that no party should profit from litigation.

2      Taunoa v Attorney General (compensation) (2004) 8 HRNZ 53 at [43].

3      Graham v Graham [2018] NZHC 29 at [2].

[8]                  Mr Wenley has since filed a memorandum in which he confirms that the grant of legal aid for the caveat proceeding was $3,103.25.

[9]                  It follows that, although, on the face of things, the applicant as the successful party would normally be entitled to an award of 2B costs of the amount cited earlier, (assuming that her actual costs exceeded that) the actual costs for which Mrs Emslie may ultimately be liable is limited to the amount of $3,103.25.

[10]Accordingly, I make a costs award in favour of the applicant in the sum of

$3,103.25. I am inferring that the grant was exclusive of disbursements, and accordingly I also order that the respondent pay to the applicant the disbursements identified by Mr Wenley of $491.00, making a total award inclusive of both costs and disbursements of $3,594.00.

Associate Judge Johnston

Solicitors:

Willis Legal, Napier for Applicant Brown and Bates, Napier for Respondent