Evans v Page

[2025] NZHC 1834

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2024-485-604 [2025] NZHC 1834

BETWEEN  SHERILYN JAYNE EVANS

Appellant

AND  MATTHEW JOHN PAGE

Respondent

On the papers:

Counsel:                   Appellant in person

C J Dellabarca for Respondent

Judgment:                4 July 2025

JUDGMENT OF GRAU J

[Costs]

Introduction

[1]    On 6 May 2025, I dismissed Ms Evans’ appeal against the Family Court’s decision granting sale orders in respect of two properties co-owned by Ms Evans and her former partner, Mr Page. I noted that, as the successful party, Mr Page was entitled to costs. Although I encouraged the parties to agree as to costs, it appears this was unable to occur.

[2]Mr Page seeks $19,120 in schedule costs, and $264.04 in disbursements.

[3]    Ms Evans asks the Court to defer the issue of costs until the outcome of her legal aid process is determined, so that she can be legally represented to present arguments about costs. She seeks leave to file a further memorandum after the final legal aid position is determined.

EVANS v PAGE (COSS) [2025] NZHC 1834 [4 July 2025]

Was Ms Evans an “aided person” and should the issue of costs be deferred?

[4]    Ms Evans notes that she was granted interim legal aid in relation to her appeal on 21 November 2024, and her application for a full grant of legal aid is under review by the Legal Aid Tribunal after legal aid was declined. She submits it would be appropriate to defer judgment on costs until the legal aid determination is made, so that it is known to which period(s) the protections under s 45 of the Legal Services Act 2011 (LSA) apply. Section 45 provides that no order for costs may be made against an aided person in a civil proceeding unless the Court is satisfied there are exceptional circumstances. Ms Evans seeks to rely on Maheta v Skybus NZ Ltd to establish she was an aided person and therefore s 45 potentially applies.1

[5]    Section 4(1) of the LSA provides that an “aided person” includes a person who is granted legal aid on an interim basis. Section 16(1)(b) specifies that a grant of legal aid on an interim basis continues until a decision is made to grant or decline an application for a full grant of legal aid. Although Ms Evans received an interim grant of legal aid, that grant only allowed her to receive legal assistance for her application for legal aid in these proceedings, but her application for legal aid was declined on 21 February 2025, and her application for reconsideration of this decision was also refused on 8 April 2025.

[6]    As a consequence, Ms Evans was only an “aided person” from 21 November 2024 to 21 February 2025. She was not legally aided in respect of her appeal, or in respect of costs relating to that appeal. I therefore do not consider that Maheta is applicable to these circumstances. In that case, Mr Maheta had received an interim grant of legal aid for his proceedings, and the concerns about whether he was an “aided person” only arose because he sought to reassign his grant of legal aid to a new provider.2 Accordingly, I do not consider that Ms Evans was an “aided person” in these proceedings. Instead, she was self-represented. Section 45 of the Legal Services Act 2011 therefore does not apply.

1      Maheta v Skybus NZ Ltd [2022] NZCA 516, (2022) 19 NZELR 343.

2      At [19]–[21].

[7]    I also do not consider the issue of costs should be deferred. I note that one of the principles applying to determination of costs is that it is “predictable and expeditious”. My understanding is that Ms Evans’ unsuccessful application for legal aid was for the substantive appeal proceedings before the High Court, which have already concluded. I therefore consider it as most unlikely that she may be successful in her review of the Legal Services Tribunal’s decision to decline her application for reconsideration. Rather, a new application for legal aid in respect of this costs matter would have to be made. The prospects of such an application succeeding are also rather limited in my view. I do not think it is appropriate to defer the issue of costs on such grounds.

[8]    Ms Evans has also sought to have the issue of costs deferred on the basis that she has had insufficient time to work through the costs material and potential arguments, due to having to spend considerable time on legal aid-related tasks, and being unwell in the lead up to memoranda on costs having to be filed.  However,   Ms Evans has provided no evidence of health issues that she says explains her delays, nor do I consider the time taken to address legal aid issues to be a satisfactory explanation, particularly when she has not explained what has required so much of her time.

[9]    Ms Evans also says that deferring costs would not cause significant prejudice to Mr Page, as she is currently unable to pay any costs award because she is reliant on a WINZ benefit, and she has no significant assets outside of the relationship property that is the subject of the Family Court proceedings. However, as noted in the substantive judgment, given the ongoing delays in this proceeding, I  consider that Mr Page should be able to have his costs determined promptly. There is no clear prospect of Ms Evans’ financial situation improving in the near term, when the substantive relationship property hearing is unlikely to occur until later this year at the earliest.3 Accordingly, I do not consider this to be a viable basis for deferring the issue of costs either.

3      See Evans v Page [2025] NZHC 1053 at [46].

Costs

[10]   Ms Evans submits that Mr Page contributed to the tortuous nature of the legal aid process and associated delay through what had been described as his “unusual” and “disappointing” efforts to influence the Legal Services Commissioner’s decision- making. She describes the appeal process as having been “procedurally messy” due to the legal aid delays and her resultant lack of legal representation. She submits that various aspects of the process and Mr Page’s conduct are relevant to any award of costs. Although she says she has not had time to set these out in full, she refers to whether the time required for the proceeding or a particular step was substantially less than the time allocated,4 and whether the Mr Page unnecessarily contributed to the time or expense of the proceeding by failing to comply with court directions or pursuing unnecessary steps or unmeritorious arguments.5

[11]   I do not consider that Mr Page unnecessarily contributed to the time or expense of the proceeding. Although his reported attempt to dissuade Legal Aid Services from granting legal aid to Ms Evans raises a concern, there is no evidence to suggest that it resulted in delays in Ms Evans’ legal aid applications being resolved. Mr Page also did not fail to comply with timetabling directions, rather it was Ms Evans who at points failed to comply with directions. The memoranda filed in opposition to Ms Evans’ requests for timetabling extensions or adjournments also cannot be described as unnecessary or unmeritorious, when Mr Page was correct to point out he would be prejudiced by any delay. Nor are there any clear indications that particular steps were substantially less than the time allocated.

[12]   I can find no error in Mr Page’s proposed schedule of costs, which includes claims for preparing for the first case management conference, filing memoranda, appearances at the various Judge’s Chambers Lists and case management conferences that were required, preparing the bundle, preparing submissions, and counsel’s appearance at the hearing.

4      High Court Rules 2016 (HCR), r 14.7(a).

5      Rule 14.7(f).

[13]   However, I note that costs are awarded at the Court’s discretion,6 and that other factors beyond those expressly outlined in the HCR can be taken into account.7 I also note that an appropriate daily recovery rate should normally be two-thirds of the daily rate considered reasonable in relation to the proceeding or interlocutory application.8 In that regard, the schedule costs claimed by Mr Page amount to nearly three-quarters of the actual costs incurred by Mr Page. While Ms Evans’ requests for extensions and adjournments caused further delay and costs to Mr Page, it was not unreasonable for her to do so, when she was attempting to obtain representation. Additionally, although financial hardship is not an answer for costs, and costs awards against an impecunious party must still be meaningful,9 I consider it is a relevant consideration to take into account.

[14]   Based on these factors, I consider a minor reduction of costs is in order, of around 10 per cent. That would bring the costs amount to $17,208.

Conclusion

[15]I award costs to the respondent, Mr Evans, of $17,208 plus disbursements of

$264.04, calculated based on the following table:

Step		Days	Costs
10	Preparation for first case management conference (including discussion about discovery)	0.4	$956.00
11	Filing memorandum for first or subsequent case management conference or mentions hearing (x5)	2.0	$4,780.00
12	Appearance at mentions hearing or callover (x2)	0.4	$956.00
13	Appearance at first or subsequent case management conferences (x2)	0.6	$1,434.00

6      Rule 14.1

7      Rule 14.7(g).

8      Rule 14.2(1)(d).

9      Foni v Foliaki [2018] NZHC 3126 at [5].

25	Preparation by application of bundle for hearing	0.6	$1,434.00
53	Commencement of response to appeal or cross-appeal	0.5	$1,195.00
56	Preparation of written submissions	3.0	$7,170.00
57	Appearance at hearing for sole or principal counsel	0.5	$1,195.00
Initial total		8.0	$19,120.00
Reduced total (by 10 per cent)		7.2	$17,208.00
Disbursements – printing bundle of documents		$264.04

[16]   Finally, I note that Mr Page made an offer to resolve the issue of costs, to which Ms Evans did not respond. That offer included that Mr Page would agree to his costs being deducted from Ms Evans’ share of the proceeds (if any) of the division of relationship property. In Ms Evans’ current circumstances, that appears to be both realistic and appropriate. I make that order accordingly.

Grau J

Copies to:

S J Evans, Wellington

C J Dellabarca, Wellington for Respondent