IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2017-404-109
[2018] NZHC 3126
BETWEEN METUISELA FONI
Plaintiff
AND
PAE I LOTOMUA FOLIAKI AND PAULINE FINAU TO’A
First Defendants
SINISA LAW LTD
Second Defendant
Hearing: On the papers Counsel:
Plaintiff in person
I M Hutcheson for the First Defendants T J Cooley for the Second Defendant
Judgment:
29 November 2018
COSTS JUDGMENT OF MUIR J
This judgment was delivered by me on Thursday 29 November 2018 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date:………………………….
Counsel/Solicitors:
I M Hutcheson, Barrister, Auckland T J Cooley, Brookfields, Auckland
Copy to:
The Plaintiff, C/- F Fonokalafi
FONI v FOLIAKI [2018] NZHC 3126 [29 November 2018]
[1] The defendants seek costs in respect of these proceedings, which were struck out for non-compliance with unless orders. In the case of the first defendant the amount sought is $23,638 together with disbursements of $238.60. In the case of the second defendant the amount is $16,948 plus disbursements of $210. In each case detailed schedules have been provided, calculated on a 2B basis.1 The plaintiff takes no issue with the defendants’ calculations. Likewise, I take no issue with them.
[2] The plaintiff’s position is that although he “accept[s] that costs are in issue given my non-compliance with the unless order”, nevertheless he is not in a position to meet a costs award and asks that this be taken into account.
[3] The plaintiff has not provided an affidavit as to his means or health status. I accept, however, based on the medical information attached to his memorandum that he is elderly, suffering from advanced metastatic prostate cancer and is in need of constant care. He says further that his only income is his pension, which is fully committed, and that he has no assets of any kind. He lives with his son in the United States, making a modest contribution to household expenses from his pension.
[4] As to the relevance of means in a costs context, there is authority for the proposition that financial hardship may be taken into account under the “catch-all” provisions of r 14.7(g),2 which recognises the existence of some “other reason” justifying the Court refusing or reducing costs.3
[5]In doing so these cases have emphasised that:
(a)financial hardship is not an answer to a claim for a costs award;4
1 I note from a review of the file that no formal categorisation for costs purposes appears to have been made but that a prior costs order by Associate Judge Doogue on 25 July 2017 was made on a 2B basis. I consider that an appropriate categorisation.
2 High Court Rules 2016.
3 Craig v Keith [2017] NZHC 2664, [2017] NZFLR 899 at [23]; Chesterfields Preschools Ltd v Commissioner of Inland Revenue [2011] NZCA 640 at [7]; Tuck v Keedwell [2016] NZHC 794 at [11]; Te Whare O Te Kaitiaki Ngahere Inc v West Coast Regional Council [2014]…
Continue reading Foni v Foliaki
Sign in free to access the full text
- AGLC
- Foni v Foliaki [2018] NZHC 3126
- Case
- [2018] NZHC 3126
- Decision Date
CaseChat Overview and Summary
The court considered the plaintiff's circumstances, acknowledging his advanced age, medical condition, and limited financial means. It noted that while financial hardship could be a factor under the "catch-all" provisions of rule 14.7(g) of the High Court Rules 2016, this was not a definitive answer to a claim for costs. The court emphasized that costs awards must be meaningful, even against impecunious parties, particularly when the case lacked merit. The court also highlighted that a sworn affidavit of limited financial means is generally preferred.
The court referenced several cases that suggested that financial circumstances should not routinely affect costs awards. It found that while some cases allowed for reductions in exceptional circumstances, such as when a party would otherwise go into liquidation, these cases were rare. The court concluded that the plaintiff's financial situation did not justify reducing the costs award, as any reduction would likely be futile given his inability to pay. The court also noted that the plaintiff's significant breaches of court orders might have justified increased costs, but this was not pursued by the defendants.
Ultimately, the court awarded costs to the defendants, stating that although it had considerable sympathy for the plaintiff's situation, it was not an appropriate case for reducing costs based on the plaintiff's health and financial circumstances. The court awarded the first defendants $23,638 in costs plus disbursements of $258.00, and the second defendant $16,946 in costs plus disbursements of $210.00. The court acknowledged that the defendants might not be able to recover the awarded costs from the plaintiff.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.