Hollands v Sorensen - [2021] NZHC 575

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2019-441-025

[2021] NZHC 575

BETWEEN
PETER KEVIN HOLLANDS

Plaintiff

AND

MICHAEL IAN SORENSEN

SONYA SORENSEN as Trustees of the Trudy Hollands Family Trust

First Defendants

AND

TRUDY HOLLANDS

Second Defendant

On the papers:

Counsel:

P Ross for the Plaintiff

S Robertson QC and A Harris for the First and Second Defendants

Judgment:

22 March 2021

JUDGMENT OF GRICE J

(Costs)

[1]The plaintiff was unsuccessful in all respects in relation to his claims.1

[2] He made claims against trust owned property in which he and his wife, the second defendant had lived, based on constructive trust, proprietary estoppel and knowing receipt.

[3] The defendants have applied for costs. Mr Hollands has taken no steps to oppose this application.

1 Hollands v Sorensen [2020] NZHC 103 [“Substantive High Court Judgment”].

HOLLANDS v SORENSEN [2021] NZHC 575 [22 March 2021]

[4] The costs claimed are calculated on a 2B basis in accordance with schedule 1 of the High Court Rules 2016 for the steps in the proceeding up to the first day of hearing, 1 December 2020. In a separate calculation, also on a 2B basis, the defendants have calculated costs from 1 December 2020, including the hearing. On the morning of the hearing, on 1 December 2020, Mr Ross, acting for Mr Hollands, advised the Court that Mr Hollands had just been granted legal aid for this matter.

[5] Therefore, the defendants argue that they are entitled to costs in the ordinary course up to 1 December 2020, and they are seeking costs for steps taken after 1 December 2020 including the hearing. This is on the basis that there are exceptional circumstances in terms of the legal aid provisions,2 that the Court may take into account to make an order for costs against Mr Hollands.3 It is only in exceptional circumstances that costs in civil proceedings may be awarded against a legally aided person.4

[6] I deal with first the application for costs up to 1 December 2020 (the grant of legal aid) and secondly, the costs sought after that date.

[7] I apply the general principles in relation to costs up to the date of the grant of legal aid. The defendants are successful and are entitled to costs. The proceedings justify costs on a 2B basis. The defendants seek costs up to the date of the hearing, including preparation for the hearing. They claim disbursements relating to court filing fees and expert witnesses’ invoices.5 The claim is appropriate in the circumstances.

2 Legal Services Act 2011, s 45(3).
3 Under s 24, a party to civil proceedings “must at once give notice” that they have been granted legal aid to every party to the proceedings and to the Registrar of the relevant Court. This was given orally by counsel for Mr Hollands on the first day of the hearing, but there is no written record of confirmation of Mr Hollands being granted…

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 Hollands v Sorensen

Details

AGLC: Hollands v Sorensen [2021] NZHC 575
Case: [2021] NZHC 575
Decision Date: 22 March 2021

CaseChat Overview and Summary

In Hollands v Sorensen, Peter Hollands brought claims against trust-owned property, seeking relief based on constructive trust, proprietary estoppel, and knowing receipt. The defendants, Michael and Sonya Sorensen as Trustees of the Trudy Hollands Family Trust, along with Trudy Hollands, successfully defended the claims, resulting in the plaintiff's complete failure. Following this, the defendants applied for costs, which the plaintiff did not oppose. The court considered the application for costs, which was divided into two parts: costs incurred before and after the plaintiff's receipt of legal aid.

The court awarded the defendants costs up to the date of the grant of legal aid, applying the general principles for costs in civil proceedings. For the costs incurred after the plaintiff's receipt of legal aid, the court noted that the immunity from costs provided by the Legal Services Act 2011 applies from the date of the grant. The defendants argued that exceptional circumstances warranted an order for costs against the plaintiff post-grant, citing the plaintiff's failure to comply with procedural rules, unreasonable pursuit of unsuccessful claims, and causing them to incur unnecessary costs. However, the court found that while the plaintiff's claims were unsuccessful and his evidence unreliable, his conduct did not reach the threshold of "exceptional circumstances" as required by the Legal Services Act. The court did not find the plaintiff's actions to be sufficiently unreasonable or misleading to justify an order for costs against him after the grant of legal aid. Consequently, the court awarded costs up to the date of the legal aid grant but did not order costs for the period following the grant.

Orders