Laurence v Laurence

[2025] NZHC 2364

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

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

CIV-2019-029-000108

[2025] NZHC 2364

BETWEEN

JANELLE KARRA LAURENCE and JT ARTHUR LAURENCE
Plaintiffs

AND

KAETAETA LAURENCE

Defendant

Hearing:

On the papers

Appearances:

R C Mark for Plaintiffs

C S Cull KC and I G V Berry-Kilgour for Defendant

Judgment:

21 August 2025

JUDGMENT OF ANDERSON J

[Costs]

This judgment was delivered by me on 21 August 2025 at 3:00 pm pursuant to r 11.5 of the High Court Rules 2016.

………………………………

Registrar/Deputy Registrar

Solicitors:

Gallaway Cook Allan, Dunedin

LAURENCE v LAURENCE [2025] NZHC 2364 [21 August 2025]

Introduction

[1]    In my judgment of 24 June 2025, I recorded my preliminary view that the plaintiffs were entitled to costs on a 2B basis. I directed the parties to file memoranda if they were unable to agree on costs. The parties have since filed memoranda on costs, and the matter now falls for my determination.

The substantive judgment

[2]    The case centred on several residential properties acquired in Kaitaia, all in the name of the defendant. Her son and his wife were the plaintiffs. The plaintiffs alleged that there had been a joint venture between themselves and the defendant to buy, develop and sell the properties in question. They alleged the defendant had breached an alleged joint venture agreement and in doing so also breached her fiduciary duties to the plaintiffs. In the alternative, the plaintiffs pleaded that the defendant held the properties/proceeds on constructive trust for them.1 The defendant maintained that the plaintiffs had no interest in the property.

[3]    The first cause of action in contract for breach of a joint venture agreement failed. No arrangement had been sufficiently formalised. However, the second cause of action succeeded. I found that the parties owed each other fiduciary duties, and that the defendant had breached those duties by refusing to recognise that the plaintiffs had any interest in the properties. I declared that the defendant held 50 per cent of the properties on trust for the plaintiffs.2

[4]    The defendant also made a counterclaim, alleging breach of fiduciary duties by the plaintiffs or money had and received. She alleged that the plaintiffs had used funds from her bank account for personal expenditure. I considered that the counterclaim should succeed for $60,000 plus interest.

1      A fourth cause of action was pleaded but was not argued at trial.

2      This included 50 per cent of the net proceeds from the sale of one of the properties.

Decision

[5]    Subject to a reduction of costs I intend to make (for reasons discussed later), in my view an order of scale costs on a 2B basis in favour of the plaintiffs is appropriate.

[6]    The costs award claimed by the plaintiffs is complicated by the timing of a grant of legal aid and its effect. The plaintiffs were originally not legally aided and were represented in the proceedings by Martin Nicholls. He had been acting prior to the litigation commencing and was also undertaking work on other legal matters for the plaintiffs. Subsequently, the plaintiffs obtained legal aid which appears to have coincided with a change to present counsel, Mr Mark, to conduct the litigation.3

[7]    Scale costs for the period after the plaintiffs were legally aided are $49,124. A legally aided party is entitled to costs for the full sum of their legal aid grant, or scale costs, whichever figure was lower. Fees and disbursements paid by legal aid were $33,346.18 in total. Within that sum, $7,914.77 appears to be disbursements incurred after legal aid was granted.4 Hence, the costs component of the legal aid grant is $25,431.41. This is less than scale costs for the steps taken after legal aid was granted, and hence caps the award for that period.

[8]    A legally aided party who is successful in the proceeding can recover more than the grant, provided that the party had personally incurred costs in excess of the legal aid grant.5 However, the costs sought by the plaintiffs appear to include all costs charged by Mr Nicholls. I do not think reimbursement on an “actual costs” basis is appropriate for two reasons:

3      It is difficult to discern which steps took place before or after the plaintiffs became legally aided, although it appears to be at the handover between Mr Nicholls and Mr Mark. This is consistent with a memorandum filed by Mr Nicholls on 3 August 2023, recording that the plaintiffs were to be represented by Richard Mark and that they were “from this point forward … legally aided”. Mr Mark also records that he was instructed when the plaintiffs obtained legal aid.

4      The plaintiffs appear to have been granted legal aid in July 2023; the disbursements in question date from late 2024.

5      Fa’agutu v Derhamy [2020] NZHC 1374 at [21].

(a)the plaintiffs have not provided any information that would enable the Court to ascertain what costs were outlaid on the proceedings as opposed to other attendances; and

(b)it is wrong to apply actual costs charged by Mr Nicholls to steps taken after he ceased acting, which appears to be partly the effect of what the plaintiffs seek to do.

[9]    Rather, as the defendant accepts, the appropriate course is to assess scale costs for the period prior to the plaintiffs’ legal aid grant and award a contribution based on these, recognising that the plaintiffs have made personal contributions to costs for that period. Scale costs on a 2B basis for the period before the plaintiffs were legally aided are $13,181.50, as set out in sch A. This comprises steps taken in the District Court (where the proceeding began), as well as some steps taken in the High Court.

[10]   This brings the total costs award to the plaintiffs to $38,851.91. However, I referred earlier to a proposed reduction to this, that I now address.

[11]   The defendant was successful in her counterclaim. Where both a claim and counterclaim succeed, the Court usually awards costs as if each party had succeeded in an independent proceeding. However, that is subject to where the Court considers that the justice of the case requires otherwise.6

[12]   The defendant’s submissions on the counterclaim cost are wide-ranging. However, the defendant ultimately submits that what would do justice between the parties is a reduction of 50 per cent to the plaintiffs’ costs award to account for the successful counterclaim. I accept the defendant’s submission that the present case justifies a reduction to the plaintiffs’ costs. In my view, the plaintiffs’ claims and defendant’s counterclaim were heavily intertwined factually. My assessment of the plaintiffs’ alleged misuse of the defendant’s accounts was linked with their management of the accounts in the course of operating the joint venture.

6      High Court Rules 2016, r 14.6.

[13]   Accordingly, I reduce the plaintiffs’ costs award, but  by  30  per cent,  not  50 per cent as sought.7 I do not consider any additional reduction on account of the plaintiffs’ failure on the contract claim is justified. The resulting costs are $27,196.34 which then need to be reduced for an earlier costs award in the defendant’s favour of

$2,500.

[14]   The plaintiffs are also entitled to reasonable disbursements. The defendant accepts that plaintiffs should be awarded disbursements of $9,918.07, being $7,914.61 in the High Court and $2,003.46 in the District Court.

[15]   Accordingly, I make an award of costs in favour of the plaintiffs of $24,696.34 plus disbursements of $9,918.07.

Orders

[16]   I award the plaintiffs $24,696.34 in costs and $9,918.07 in disbursements (as set out in sch B).

Anderson J

7      I note that costs are generally not awarded against legally aided parties in civil proceedings. However, no award of costs is being made against them. There is no prohibition on reducing costs awarded to a legally aided party: see Taunora v Attorney-General (2004) 8 HRNZ 53 (HC).

SCHEDULE A

Step claimed	Category 2 daily recovery rate	Time allocation (Band B unless otherwise specified)	Scale costs divided by two
District Court
Step 1 Commencement of proceeding	$1,910	1.5	$2,865.00
Step 8.1 Preparation for settlement conference	$1,910	0.25	$477.50
Step 8.2 Appearance at settlement conference, 16/05/2022	$1,910	0.5	$955.00
Step 9.5 List of documents on discovery	$1,910	1	$1,910.00
Step 9.6 Production of documents	$1,910	0.75	$1,432.50
Step 9.8 Drafting memorandum for first case management conference, 11/10/2019	$1,910	0.25	$477.50
Step 9.9 Appearance at first case management conference	$1,910	0.3	$573.00
Step 9.8 Drafting memorandum for case management conference, 23/06/2021	$1,910	0.25	$477.50
Step 9.9 Appearance at case management conference, 23/06/2021	$1,910	0.3	$573.00
Step 9.8 Drafting memorandum for case management conference, 04/08/2022	$1,910	0.25	$477.50
Step 9.9 Appearance at case management conference, 04/08/2022	$1,910	0.3	$573.00
High Court
Step 10 Preparation for case management conference	$2,390	0.4	$956.00
Step 11 File memorandum for case management conference	$2,390	0.4	$956.00
Step 13 Appearance at case management conference	$2,390	0.3	$717.00
Total			$13,420.50

SCHEDULE B

Disbursements claimed	Amount claimed
District Court
Filing fees	$491.30
Travel	$213.35
Printing	$1,017.50
Postage	$6.95
USB drive	$13.04
Total GST	$261.32
High Court
Photocopying	$195.55
Compile bundle	$2093.14
Copy and bind bundle	$2,267.96
Mileage	$1,201.20
Travel	$1,102.50
Parking	$21.91
Total GST	$1032.35
Total	$9,918.07