Flavell v Campbell - [2019] NZHC 2993

NOTE: PURSUANT TO S 80 OF THE PROTECTION OF PERSONAL AND PROPERTY RIGHTS ACT 1988, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

https://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-003092

[2019] NZHC 2993

BETWEEN
MS FLAVELL

Appellant

AND

MR CAMPBELL

Respondent

Hearing: (On the papers)

Counsel:

Appellant in Person

A Cooke as Counsel to Assist G Askelund for Mr Thomas

Judgment:

18 November 2019

[COSTS] JUDGMENT OF MOORE J

This judgment was delivered by me on 18 November 2019 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

FLAVELL v CAMPBELL [2019] NZHC 2993 [18 November 2019]

Introduction

[1] These proceedings concern efforts that have been made to protect the interests of Mr Thomas.1 Mr Thomas lives with a chronic mental illness and, relatedly, impaired short-term memory and an impaired capacity to process information as part of decision making. Regrettably, his prognosis is poor. He is, and will remain, a person in respect of whom provision will need to be made in terms of the Protection of Personal and Property Rights Act 1988 (“the Act”).

[2] In my judgment of 12 April 2019,2 I dismissed an appeal brought by Mr Thomas’ sister, Ms Flavell,3 against a November 2017 decision of the Family Court.4 In that judgment, the Court revoked Ms Flavell’s enduring power of attorney (“EPOA”) in respect of Mr Thomas’ financial affairs and declared that Ms Flavell was not a fit or proper person to manage Mr Thomas’ affairs. The Public Trust was appointed property manager to manage Mr Thomas’ affairs.

[3] The present judgment determines the question of costs on Ms Flavell’s unsuccessful appeal.

Background

[4] A fuller narrative detailing the background facts is contained in my judgment of 12 April 2019.5

[5] Suffice to say, in 2015 Mr Thomas was the sole holder of an account with the credit union (“Credit Union”). Credit Union staff became concerned about the use of the card. The Credit Union placed a stop on the card. When inquiries were made and Mr Thomas expressed no concern about the use of the card, the stop was removed. Further substantial withdrawals were subsequently made.

1      This is a fictious name to protect the identity of the party.
2      Flavell v Campbell [2019] NZHC 799.
3      This is a fictitious name to protect the identity of the party.
4      [Campbell] v [Thomas] [2017] NZFC 9125. See also [Campbell] v [Thomas] [2017] NZFC 4720.
5      Flavell v Campbell, above n 2 at [3] and following.

[6] Mr Thomas twice attended the Credit Union to meet with its general manager, the respondent Mr Campbell.6 These meetings took place on 4 December and 15 January 2016. On both occasions, Ms Flavell sought to prevent Mr Campbell from talking privately with Mr Thomas. On the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NZHC 2993
Decision Date: 18 November 2019

CaseChat Overview and Summary

Flavell v Campbell is a case before the High Court of New Zealand, Auckland Registry, involving a dispute over the management of Mr Thomas' financial affairs. Mr Thomas, who suffers from chronic mental illness, appointed his sister, Ms Flavell, as his enduring power of attorney (EPOA) for his financial affairs. However, concerns arose about Ms Flavell's conduct and her suitability to manage Mr Thomas' affairs. The Family Court subsequently revoked Ms Flavell's EPOA and appointed the Public Trust as property manager for Mr Thomas' affairs. Ms Flavell appealed the Family Court's decision, which was dismissed by the High Court. The present judgment determines the question of costs on Ms Flavell's unsuccessful appeal.

The legal issues in this case revolve around the costs associated with the appeal process and the appropriate forum to determine those costs. The court must decide whether the costs of the counsel appointed to assist the court and the lawyer representing Mr Thomas should be determined by the High Court or the Family Court. The court also considers whether any party to the proceeding should be ordered to reimburse the Crown for the legal expenses.

In its reasoning, the court highlights the anomalous position that the Family Court, rather than the High Court, is responsible for determining the costs of counsel in the appeal process. This conclusion is based on the specific provisions of the Protection of Personal and Property Rights Act 1988, which derogate from the High Court's general power to make costs orders on appeals from the Family Court. The court notes that the Family Court is best placed to assess the conduct and merits of the appeal and make a determination on the reasonableness of counsel's costs.

As a result, the court makes no orders in respect of the costs or disbursements payable in respect of Mr Cooke's or Mr Akerlund's roles in the proceeding. Instead, the Family Court is to determine these costs, and a copy of the judgment is to be provided to the Registrar of the Family Court at Auckland, as the Registry in which the Family Court proceeding was filed.

Orders