King v PFL Finance Limited - [2014] NZHC 1442

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-1734 [2014] NZHC 1442

BETWEEN
THOMAS FREDRICK MAZLIN KING

and JUDITH RUTH KING as partners of the TFM AND JR KING PARTNERSHIP First Plaintiffs

HAVELOCK FARMS LIMITED Second Plaintiff

AND

PFL FINANCE LIMITED First Defendant

CRAIG BEECROFT Second Defendant

Hearing: 22 May 2014

Appearances:

D G Chesterman for First Plaintiffs
K M Quinn and M H Tushingham for Defendants

Judgment:

25 June 2014

FIRST COSTS JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 25 June 2014 at 2.45 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date: ...................................

Solicitors: Holland Beckett, Tauranga
Heimsath Alexander, Auckland

Counsel: D G Chesterman, Auckland
K M Quinn, Auckland
M H Tushingham, Auckland

KING v PFL FINANCE LIMITED [2014] NZHC 1442 [25 June 2014]

[1] In my reasons for judgment in this matter I gave the Defendants leave to file and serve a memorandum on costs.1

[2] Since then, I have received the Defendants’ memorandum of 21 March 2014, the Plaintiffs’ (“Kings”) of 6 May 2014 and the Defendants’ in reply of 9 May 2014. I have also had the benefit of counsels’ oral submissions.

[3] The issues which arise are:

(a) whether I should make an order pursuant to s 45(5) Legal Services

Act 2011 (“Act”); and if so

(b)what order for costs would have been made against the Kings with respect to the proceedings if s 45 of the Act had not affected their liability.

[4] For the reasons given below, I propose to make an order pursuant to s 45(5) of the Act. The quantum of that order may be affected by matters set out at the end of this judgment and, once those are clarified, the quantum of the order will be fixed.

Section 45

[5] Section 45 of the Act provides:

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:

1 King v PFL Finance Ltd [2014] NZHC 250 at [230].

…

(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…

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

Case: [2014] NZHC 1442
Decision Date: 25 June 2014

CaseChat Overview and Summary

In the case of King v PFL Finance Limited, the first plaintiffs, Thomas Fredrick Mazlin King and Judith Ruth King as partners of the TFM and JR King Partnership, and the second plaintiff, Havelock Farms Limited, filed a lawsuit against the first defendant, PFL Finance Limited, and the second defendant, Craig Beecroft. The dispute involved issues related to the provision of legal aid and the subsequent costs associated with the litigation. The High Court of New Zealand, Auckland Registry, presided over the case. The legal issues before the court were whether the court should make an order pursuant to section 45(5) of the Legal Services Act 2011 and, if so, what the order for costs would have been if the act had not affected the plaintiffs' liability.

The court, after considering the submissions from both parties and the relevant legal provisions, determined that an order should be made pursuant to section 45(5) of the Act. The court considered the successful defense of the defendants in the litigation and their success on substantial portions of their counterclaim. The quantum of the order would be based on a schedule of costs and disbursements submitted by the defendants, subject to adjustments as necessary. The court also addressed concerns regarding double recovery by the defendants and requested confirmation that no claim was made for a cost or disbursement that had already been covered by a previous payment made by the plaintiffs' earlier solicitors.

Ultimately, the court proposed to make an order in the sum of the schedule filed with the defendants' supplementary memorandum dated 22 May 2014, subject to confirmation from the defendants regarding any potential double recovery. The final orders would be made once the quantum of the order was clarified and any necessary adjustments were addressed.

Orders