Gallo v Sultan - [2021] NZHC 2310

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-409-000280

[2021] NZHC 2310

BETWEEN
MICHAEL ROSS GALLO

Applicant

AND

NADIA SULTAN

Respondent

Hearing: On the papers

Counsel:

A N Riches for Applicant O T Alpers for Respondent

(Submissions for Respondent filed by Mr R A Peters)

Judgment:

3 September 2021

COSTS JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 3 September 2021 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

GALLO v SULTAN [2021] NZHC 2310 [3 September 2021]

Background

[1] The applicant, Mr Gallo, applied for an order that his notice of claim of interest pursuant to s 42(2) of the Property (Relationships) Act 1976 lodged against the title to a property registered in the name of his wife, Ms Sultan, not lapse. The application was filed following receipt of a notice from the Registrar-General of Land that Ms Sultan had applied to lapse the notice of claim of interest.

[2] Mr Gallo’s application was opposed by Ms Sultan and timetabling directions were made for the filing of evidence and submissions and for a defended hearing on 31 August 2021. It was only upon receipt of submissions filed for Ms Sultan on 25 August 2021 that an indication was given that she would withdraw her opposition to the application. By that stage Mr Gallo had filed two substantive affidavits, a bundle of relevant documents for the hearing and detailed legal submissions with authorities.

[3] I directed counsel to confer to see if some agreement to resolve the application could be reached. On 27 August 2021, Mr Gallo’s counsel, Mr Riches, advised that following discussion between counsel agreement had been reached, save in relation to costs.

[4] On 31 August 2021, there was a hearing at which I made an order by consent that Mr Gallo’s notice of claim of interest shall not lapse.1 In relation to the outstanding issue of costs, Mr Alpers advised that on 30 August 2021 Ms Sultan had made application for legal aid. I understand the first indication that was given to Mr Riches that such an application had been made was at 6.59 pm on 30 August 2021 in an email from Ms Sultan’s counsel, Mr Peters. On the basis Ms Sultan had applied for legal aid, Mr Alpers submitted that no order for costs should be made against her.

[5] In light of this unexpected development, I made a direction that counsel were to file any further submissions they wished to make concerning the implications of Ms Sultan’s application for legal aid upon her liability for costs. Those submissions were received on 1 September 2021.

1 Gallo v Sultan [2021] NZHC 2286.

[6] Ms Sultan argues costs should lie where they fall. Her counsel’s submission confirms that Ms Sultan’s application for legal aid was lodged on the morning of 30 August 2021 and no grant has been made. Counsel submits that it would…

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 Gallo v Sultan

Details

AGLC: Gallo v Sultan [2021] NZHC 2310
Case: [2021] NZHC 2310
Decision Date: 3 September 2021

CaseChat Overview and Summary

The case of Gallo v Sultan involves an application by the applicant, Mr Michael Ross Gallo, to prevent his notice of claim of interest under the Property (Relationships) Act 1976 from lapsing, lodged against the title to a property registered in the name of his wife, Ms Nadia Sultan. Ms Sultan opposed the application but later withdrew her opposition after incurring significant costs. The primary legal issue before the court was whether Ms Sultan, who had applied for legal aid, was immune from costs under section 45 of the Legal Services Act 2011. The court held that Ms Sultan was not an aided person for the purposes of the Legal Services Act because she had not been granted legal aid at the time of the court's decision. The court also concluded that even if she had been granted legal aid, it would not provide her with immunity from costs already incurred. The court further found that Mr Gallo was entitled to costs on a category 2B basis with a 10% uplift for the steps taken in the proceeding after 23 July 2021, to be calculated according to the District Court's scale.

The reasoning of the court was based on the interpretation of section 45 of the Legal Services Act 2011, which provides immunity from costs to an aided person, defined as someone who has been granted legal aid. The court found that Ms Sultan was not an aided person because she had only applied for legal aid and not received a grant at the time of the decision. The court also noted that there was no retrospective application of immunity under the statute. Furthermore, the court found that Mr Gallo was entitled to costs due to the complexity of the proceeding and Ms Sultan's failure to respond to the open letter dated 23 July 2021, which clearly outlined the merits of Mr Gallo's case. The court awarded costs on a category 2B basis, with a 10% uplift for the steps taken in the proceeding after 23 July 2021, to be calculated according to the District Court's scale. Mr Gallo was required to submit a memorandum setting out the amounts claimed for approval before an order was sealed.

Orders