Laverty v Para Franchising Ltd CA104/04

This appeal concerns an order for costs made against legally aided defendants in proceedings involving a breach of a franchise agreement. The appellants, Mr and Mrs Laverty, and their company, Walop No. 3 Limited, were sued by the respondent, Para Franchising Limited, for breach of a restraint of trade clause in a franchise agreement, breach of the Fair Trading Act 1986, passing off and trade-mark infringement. The appellants counter-claimed for wrongful termination of the agreement. The High Court judge awarded the respondent damages of $102,095 and made an order for costs against the appellants in the sum of $96,750. The appellants appealed against that order. The main issue before the Court of Appeal was whether the High Court judge had correctly exercised his discretion to award costs in excess of the amount of the contribution that the appellants were required to make to the cost of their legal services. The Court of Appeal held that there were no exceptional circumstances that warranted an award of total costs against an aided party in excess of $90,000. The Court of Appeal set aside the order for costs and ordered each appellant to pay costs fixed at their respective contributions required under s 15(1) of the Legal Services Act, which in each case is $50. The Court of Appeal also specified that there would have been an order in the High Court against the appellants had they not been legally aided, that they pay costs in the sum of $81,900. The appellants are entitled to the costs of this appeal which were fixed at $6,000 together with disbursements as fixed by the Registrar.