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ORDER PROHIBITING PUBLICATION OF THE NAMES OF THE APPELLANT AND THE RESPONDENT FOR 10 WORKING DAYS FROM DATE OF JUDGMENT OR FURTHER ORDER OF THIS COURT.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA155/2016 [2017] NZCA 249
BETWEEN
JOINT ACTION FUNDING LIMITED
Appellant
AND
JOHN REVANS EICHELBAUM Respondent
Hearing:
14 March 2017
Court:
Brown, S France and J Williams JJ
Counsel:
A R Gilchrist and G Abdale-Weir for Appellant Respondent in person
Judgment:
14 June 2017 at 11.30 am
JUDGMENT OF THE COURT
A The appeal is allowed in part.
B The award of costs in favour of the respondent in the High Court is set aside.
C The respondent must pay the appellant costs for a standard appeal on a band A
basis and usual disbursements.
DOrder prohibiting publication of the names of the appellant and the respondent for 10 working days from date of judgment or further order of this Court.
REASONS OF THE COURT
(Given by Brown J)
JOINT ACTION FUNDING LIMITED v EICHELBAUM [2017] NZCA 249 [14 June 2017]
Table of Contents
Para No.
Introduction [1] The origin of the lawyer-litigant exception [4] The Australian position [10] The English position [16] The position in New Zealand [20] The former costs rules [21] The current costs rules [22] Text [24] The purpose of the costs rules [46] The objective of the costs rules: the exception contrasted [49] Conclusion [57] Does the exception apply to a self-represented barrister sole? [58] Quantum [66] Result [75]
Introduction
[1] Mr Eichelbaum is a practising barrister. He was successful in a claim, which he conducted in person, for an order under s 91 of the Companies Act 1993 rectifying the share register of the appellant, Joint Action Funding Limited (JAFL), to record a transfer to him of a 10 per cent shareholding in JAFL.1 Thomas J awarded Mr Eichelbaum costs in the sum of $16,688 and disbursements of $2,630 and awarded JAFL indemnity costs in the sum of $1,375.50.2 JAFL appeals against that costs judgment.
[2] Although a litigant in person in New Zealand is not entitled to recover costs except in exceptional cases,3 there is a long recognised exception that a practising barrister and solicitor who brings or defends a proceeding in person4 is entitled to the same costs as when acting on behalf of a client (the lawyer-litigant exception).
[3] JAFL invites this Court to reconsider that exception. Its appeal raises three issues, namely:
24 NZTC 24,500 at [162]; and Re Collier (A Bankrupt) [1996] 2 NZLR 438 (CA) at 441–442.
4 Or by a partner or employee of the firm.
(a) whether the lawyer-litigant exception should be maintained in New Zealand in view of the doubt expressed by the High Court of Australia in
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.
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Details
AGLC
Joint Action Funding Ltd v Eichelbaum [2017] NZCA 249
Case
[2017] NZCA 249
Decision Date
CaseChat Overview and Summary
Joint Action Funding Limited (JAFL) appeals against an order made by Thomas J that it pay the costs of John Eichelbaum. JAFL submits that the lawyer-litigant exception to the general rule denying costs to litigants in person should not apply in New Zealand. Eichelbaum, a practising barrister, submits that the exception should continue to apply. The appeal raises three issues: (a) whether the lawyer-litigant exception should be maintained in New Zealand; (b) whether the exception applies to a self-represented barrister sole; and (c) whether the costs awarded to Eichelbaum were excessive and whether the indemnity costs awarded to JAFL should be increased. The Court of Appeal held that the lawyer-litigant exception should no longer apply in New Zealand as it is inconsistent with the text of the current costs rules and undermines the objectives of the rules. The Court held that the exception applies to a self-represented barrister sole. The Court dismissed the appeal against the quantum of the indemnity costs order. The appeal is allowed in part. The award of costs in favour of Eichelbaum in the High Court is set aside. Eichelbaum must pay JAFL costs for a standard appeal on a band A basis and usual disbursements. An order prohibiting publication of the names of the appellant and respondent for 10 working days from the date of this judgment or further order of this Court is made.