Fielding v Burrell HC Auckland CIV 2007-404-317
[2007] NZHC 2043
•24 August 2007
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2007-404-000317
IN THE MATTER OF the Family Proceedings Act 1980 and the
Property (Relationships) Act 1976
BETWEEN RICHARD DENNIS FIELDING Appellant
ANDELIZABETH ANNE BURRELL Respondent
Judgment: 24 August 2007 at 12.30 p.m.
COSTS JUDGMENT OF VENNING J
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Solicitors: Dyer Whitechurch, Auckland
Simpson Grierson, Auckland
Copy to: J Holland, Auckland
FIELDING V BURRELL HC AK CIV 2007-404-000317 24 August 2007
Application for costs
[1] The appeal in this case was dismissed in a decision delivered on 11 July
2007. Costs were reserved to be dealt with by way of submissions. The respondent filed submissions in accordance with the timetable. The appellant has failed to file submissions in reply as directed. Both counsel and the solicitor for the appellant seek leave to withdraw. However, as there has been no formal application in accordance with the rules it is the solicitor’s responsibility to ensure the appellant receives a copy of this judgment.
[2] The appellant has had ample time to respond with submissions. The proceedings underlying the appeal have been characterised by delay and obstructive conduct on his part. Given the history to the proceedings I propose to fix costs on the basis of the memorandum received from the respondent’s counsel.
[3] Subject to the issue of the effect of legal aid granted to the appellant, costs would otherwise be appropriate: s 171 Family Proceedings Act 1980; rr 46 and
47(a) High Court Rules. [4] Three issues arise.
• Whether the Legal Services Amendment Act 2006 applies.
• Whether there are exceptional circumstances.
• If there are exceptional circumstances, what the quantum should be.
Does the Legal Services Amendment Act 2006 apply?
[5] The appellant was granted legal aid for the appeal on 27 February 2007. The Legal Services Amendment Act 2006 came into force on 1 March 2007. Section 47 of the Amendment Act provides:
47 Applications for legal aid and grants of legal aid made before commencement of this Act
(1) In this section and section 48, commencement date means the commencement date of the Legal Services Amendment Act 2006.
(2) The provisions of the Legal Services Amendment Act 2006 do not affect applications for legal aid or grants of legal aid made before the commencement date, except as provided in this section and section 48.
(3) Sections 40 and 41 of the principal Act (as substituted by section 28 of the Legal Services Amendment Act 2006) apply to any proceeding for which legal aid has been granted on or after the commencement date.
(4) Section 116A(2) of the principal Act (as substituted by section 43 of the Legal Services Amendment Act 2006) applies to all charges created by or under the Legal Aid Act 1969.
[6] Despite the provisions of s 47(2) counsel for the respondent submitted that s 47(3) was not intended to apply only where the grant of aid was made on or after
1 March 2007 as the subsection would then not operate as an exception to s 47(2). Counsel also noted the reference to the use of the phrase “has been” in s 47(3) rather than “is” as supporting that construction.
[7] However, in my judgment and without the benefit of full argument, I consider the meaning of ss 47(2) and 47(3) to be tolerably clear. The intent of s 47(2) is that the Amendment Act will not affect either:
• applications for legal aid; or
• grants of legal aid; both made before 1 March 2007, except as provided in s 47 and s 48.
[8] Section 48 is not relevant for present purposes as it applies to the providers of legal services. The only remaining provisions of s 47 that are relevant are ss 47(3) and (4). The effect of s 47(3) is that even though the application for aid may have been made before 1 March 2007 the Amendment Act will apply to the proceeding if aid has been granted on or after 1 March 2007. Section 47(4) confirms that the Amendment Act applies to all charges created by or under the Legal Aid Act 1969. The provisions of that amended section would apply even to grants of legal aid made before 1 March 2007. Thus on their face ss 47(3) and 47(4) provide for exceptions
to s 47(2). However, apart from those exceptions, which are provided for by the wording in s 47 itself, the plain intent of s 47(2) is that the provisions of the Amendment Act do not affect grants made before 1 March 2007 as the grant in this case was.
[9] I am unable to accept counsel’s argument based on the use of the words “has been” because the phrase is linked to the grant of aid on or after the commencement date.
[10] I conclude that the Legal Services Act 2000, unaffected by the Amendment
Act 2006, applies to the present case.
Are there exceptional circumstances warranting an award of costs?
[11] Section 40(2) of the Legal Services Act 2000 provides that no order for costs may be made against an aided person unless the Court is satisfied that there are exceptional circumstances. Section 40(3) sets out conduct that may amount to exceptional circumstances. The relevant conduct in the present case is:
• Conduct that causes the other party (in this case the respondent) to incur unnecessary cost;
• Any unreasonable pursuit of one or more issues on which the aided person fails;
• Any other conduct that abuses the processes of the Court.
[12] I am satisfied that there are exceptional circumstances in this case. I accept counsel’s submission that the appellant has made every possible effort to avoid enforcement of the original orders. A party is of course entitled to appeal. However, this appeal was, as noted by the Court, without merit. It was the last step in a series of steps taken by the appellant to prevent the respondent receiving the fruits of a judgment obtained some years ago. The background is set out in the Court’s substantive judgment. It is not necessary to repeat it in this judgment.
[13] The appellant raised a number of unmeritorious points on appeal. First he sought to challenge a refusal of adjournment in the District Court. There may well have been an issue as to jurisdiction but in any event in declining the adjournment the Judge was exercising a discretion. It was unreasonable to pursue that point on appeal as a substantive appeal point. The appellant also raised the issue of lack of jurisdiction in the Family Court to deal with the application, despite contrary authority. As a consequence the respondent incurred further unnecessary and additional cost. Counsel was also unable to refer to any direct authority for the proposition advanced that all unsecured creditors of a trust should have been served with the application. Further, the issue of priority as between the appellant’s current wife and the respondent had been determined in earlier proceedings before Keane J. Despite that the matter was raised again. Nor was there any merit in the ultra vires point raised by the appellant.
[14] Given the background to this matter the irresistible inference is that the appellant was determined to use all legal avenues to avoid paying the respondent her judgment under the Matrimonial Property Act. I find that there are exceptional circumstances in this case that warrant an order for costs against the appellant despite the grant of legal aid to him.
What should the quantum be?
[15] As the appellant has failed to file any submissions in response the Court only has the information from the hearing as to the appellant’s circumstances.
[16] I do not accept that costs should be awarded on a solicitor client basis, but an uplift from scale is appropriate. By the narrowest of margins I conclude the appellant’s actions were not frivolous, vexatious or improper. His actions have, however, unnecessarily increased the costs to the respondent. The appropriate order for costs in this case is an order for costs to scale with an uplift of 50 percent: Holdfast NZ Limited v Selleys Pty Limited (2005) 17 PRNZ 897.
[17] In the circumstances of this case the order for costs made against the appellant is the same as that that he would have been ordered if he had not been granted aid.
[18] The respondent is to have costs against the appellant in the sum of $4,320.00 calculated as follows:
• Memorandum for case management conference .4 x $1600 = $640.00
• Preparation for appeal (½ day) $800.00
• Appearance at the hearing (½ day) $800.00
• Memorandum for costs .4 x $1600 = $640.00
$2,880.00
• Add 50 percent uplift $1,440.00
$4,320.00
[19] I decline the application that the costs be added to the judgment sum. The general practice that costs orders are personal should apply.
Result
[20] The appellant is to pay the respondent costs in the sum of $4,320.00.
Venning J
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