Janet Ann Redmond v Miro Zaleta

[2023] NZHC 3770

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B,

11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

https://

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2022-488-000097

[2023] NZHC 3770

UNDER

s 39 of the Property (Relationships) Act 1976

IN THE MATTER OF

an appeal against the decision of the Family Court at Whangarei dated 16 September 2022

BETWEEN

JANET ANN REDMOND

Appellant

AND

MIRO ZALETA

Respondent

Hearing:	On the papers
Judgment:	19 December 2023

JUDGMENT OF DOWNS J

(Costs)

This judgment was delivered by me on Tuesday, 19 December 2023 at 11 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

RH Lawyers Ltd, Whangarei. Go Legal, Orewa.

AE Ashmore, Auckland.

REDMOND v ZALETA [2023] NZHC 3770 [19 December 2023]

[1]    Miro  Zaleta  applied  to  the  Family  Court  for   relief   under   the   Property (Relationships) Act 1976.  Judge  L  King  concluded  Mr  Zaleta  and  Janet Redmond had “three discrete relationships”,1 none of which qualified under the Act. However, the Judge concluded Ms Redmond should pay Mr Zaleta $15,000 for his contributions to property owned by Ms Redmond. Ms Redmond appealed on the basis the order lacked jurisdiction. Mr Zaleta cross-appealed.

[2]    On 24 March 2023, the parties filed a joint memorandum recording Mr Zaleta’s cross-appeal was discontinued and agreement Ms Redmond’s appeal should be allowed. Moore J promptly made orders in accordance with the memorandum.

[3]    The parties filed cost submissions in accordance with a timetable imposed by Moore J.  However, the submissions were not referred to a Judge for determination.  I am told “the file somehow got overlooked and was only brought to [the] Registry’s attention ... when counsel inquired about the cost’s (sic) submissions”. It follows the parties have had to wait more than six months for a decision in relation to costs. This should not have happened. I offer the Court’s apology.

[4]    Mr Zaleta was legally aided. Ms Redmond seeks a costs determination in accordance with s 45(5) of the Legal Services Act 2011. In context, s 45(5) reads:

45     Liability of aided person for costs

(1)If an aided person receives legal aid for civil proceedings, that person’s liability under an order for costs made against him or her with respect to the proceedings must not exceed an amount (if any) that is reasonable for the aided person to pay having regard to all the circumstances, including the means of all the parties and their conduct in connection with the dispute.

(2)No order for costs may be made against an aided person in a civil proceeding unless the court is satisfied that there are exceptional circumstances.

(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:

1      Zaleta v Redmond [2022] NZFC 5070 at [113].

(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)Any order for costs made against the aided person must specify the amount that the person would have been ordered to pay if this section had not affected that person’s liability.

(5)If, because of this section, no order for costs is made against the aided person, an order may be made specifying what order for costs would have been made against that person with respect to the proceedings if this section had not affected that person’s liability.

(6)If an order for costs is made against a next friend or guardian ad litem of an aided person who is a minor or is mentally disordered, then—

(a)     that next friend or guardian ad litem has the benefit of this section; and

(b)     the means of the next friend or guardian ad litem are taken as being the means of the aided person.

[5]    As Ms Redmond’s appeal was allowed (by agreement), it follows she was entirely successful in the Family Court and in this Court. Costs almost always follow the event, meaning the successful party is presumptively entitled to costs.

[6]    Costs on a 2B basis in the Family Court amount to $27,026.50. Costs in this Court on a 2A basis amount to $9,000.40. I, therefore, record $36,026.90 is the award that would have been made against Mr Zaleta if s 45(5) had not affected his liability.

……………………………..

Downs J