Gill v Lethlean - [2021] NZHC 296

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-000367

[2021] NZHC 296

BETWEEN
PETER GLEN GILL

Appellant

AND

ANTHONY JAMES LETHLEAN

Respondent

Hearing: 11 February 2021

Appearances:

C R D Williams for Appellant G A Cooper for Respondent

Judgment:

26 February 2021

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 26 February 2021 at 2.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Introduction

[1] In April 2020, Mr Lethlean applied for a restraining order against Mr Gill.1 He also sought an award of indemnity costs. On 19 May 2020, the Court made the restraining order against Mr Gill, without opposition. The Judge reserved the issue of costs, to be dealt with at a subsequent hearing. In the interim, Mr Gill had a grant of legal aid confirmed which was advised to Mr Lethlean’s lawyers on 16 June 2020.

1 Under the provisions of the Harassment Act 1997.

GILL v LETHLEAN [2021] NZHC 296 [26 February 2021]

[2] At the costs hearing on 25 June 2020, Mr Lethlean pursued a claim for indemnity costs. Mr Gill opposed any order for costs on the grounds he was protected by s 45 Legal Services Act 2011 (the Act).

[3] Section 45 gives an unsuccessful party who is legally aided, an immunity from an award of costs against him or her unless there are “exceptional circumstances”. Section 45(3) gives guidance on what constitutes such circumstances. It provides:

(3)In determining whether there are exceptional circumstances under subsection (2), the court may take account of, but is not limited to, the following conduct by the aided person:

(a)any conduct that causes the other party to incur unnecessary cost:

(b)any failure to comply with the procedural rules and orders of the court:

(c)any misleading or deceitful conduct:

(d)any unreasonable pursuit of 1 or more issues on which the aided person fails:

(e)any unreasonable refusal to negotiate a settlement or participate in alternative dispute resolution:

(f)any other conduct that abuses the processes of the court.

[4]In a decision issued on 9 July 2020, the District Court held that:2

(a)there were “exceptional circumstances”;

(b)the amount which was reasonable to pay having regard to all the circumstances, was 1.5 times the cost calculated on a 2B basis, together with such disbursements as the Registrar permitted.

[5] That judgment resulted in a costs award of $8,450.50 against Mr Gill, although Mr Lethlean incurred costs totalling $38,462 by the time of the hearing.

[6]Mr Gill appeals that costs decision on the following grounds:

2 Lethlean v Gill [2020] NZDC 13181.

(a)the Judge wrongly concluded there were exceptional circumstances justifying an award of costs against the appellant;

(b)the Judge failed to determine the means of the appellant before making an award of costs against him; and

(c)the Judge failed to explain why, in the event an award of costs was both permitted under s 45(1) of the Act and appropriate, costs in excess of scale…

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 Gill v Lethlean

Details

AGLC: Gill v Lethlean [2021] NZHC 296
Case: [2021] NZHC 296
Decision Date: 26 February 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Peter Glen Gill, the appellant, appeals a decision of the District Court which awarded costs to Anthony James Lethlean, the respondent. The District Court made the award on the basis that there were "exceptional circumstances" under s 45(2) Legal Services Act 2011, justifying an award of costs against Mr Gill. The District Court found that the appellant’s behaviour, including persistent harassment, caused the respondent to incur unnecessary costs. The District Court ordered that Mr Gill pay $8,450.50 in costs, an amount which was 1.5 times the cost calculated on a 2B basis. The appellant argues the District Court erred in three respects. Firstly, it wrongly concluded there were "exceptional circumstances" justifying an award of costs against him. Secondly, it failed to determine the means of the appellant before making an award of costs against him. Finally, it failed to explain why, in the event an award of costs was both permitted under s 45(1) of the Act and appropriate, costs in excess of scale were justified. The Court agrees the District Court erred in the last two respects, and accordingly, quashes the decision and orders the appellant to pay the respondent costs in relation to the District Court proceedings calculated on a 2B basis, plus disbursements as fixed by the Registrar. Costs are to lie where they fall on this appeal.

Orders