Legal Research
Cases
Foni v Foliaki

Foni v Foliaki

Case [2018] NZHC 3126 29 November 2018

Civil Litigation & Procedure

No judgment structure available for this case.

Type to search within this case.

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]…

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.

Continue reading Foni v Foliaki

Details

AGLC: Foni v Foliaki [2018] NZHC 3126
Case: [2018] NZHC 3126
Decision Date: 29 November 2018

CaseChat Overview and Summary

The High Court of New Zealand considered an application for costs in the case of Foni v Foliaki, where the plaintiff, Metuisela Foni, faced claims from the defendants, Pae I Lotomaua Foliaki and Pauline Finau To'a, and Sinisa Law Ltd. The proceedings were struck out for non-compliance with unless orders. The first defendants sought $23,638 in costs, with disbursements of $238.60, and the second defendant sought $16,948, with disbursements of $210. Foni, the plaintiff, admitted non-compliance with the unless orders but argued that he could not meet the costs award due to his advanced metastatic prostate cancer, limited income, and lack of assets. The court assessed whether financial hardship could justify reducing the costs award.

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