LDS v MFG

[2024] NZHC 1540

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2023-409-228 [2024] NZHC 1540

BETWEEN

LDS

Appellant

AND

MFG

First Respondent

AND

MGA, MMC and

LANDSBOROUGH TRUSTEE SERVICES

NO 1 LIMITED as Trustees of the G&MM FAMILY TRUST

Second Respondents

Hearing:

On the papers

Counsel:

A S P Tobeck for the Appellant

D R Mills-Godinet for the First Respodnent C R Johnstone for the Second Respondent

Judgment:

13 June 2024

JUDGMENT OF HARLAND J AS TO COSTS

Introduction

[1]    On 8 March 2024, I issued my judgment dismissing this appeal. Both the first and second respondents now apply for costs. The appellant accepts that costs are payable to the second respondents but submits that the first respondent is not entitled to costs.

LDS v MFG [2024] NZHC 1540 [13 June 2024]

Costs – second respondents

[2]    At the first case management conference for this appeal, security for costs was directed but the proceeding was not categorised in accordance with r 14.3 of the High Court Rules 2016 (HCR). I agree with counsel that categorisation and time allocation on a 2B basis is appropriate. The schedule attached to counsel for the second respondents’ memorandum of 20 March 2024 calculates the costs payable under sch 3 of the HCR. Counsel for the appellant agrees that these are appropriately awarded. I therefore order that the appellant pay costs in the sum of $12,667 to the second respondents.

Costs – first respondent

[3]    In relation to the first respondent, Mr Tobeck for the appellant submitted that, as the first respondent is legally aided in the Family Court property proceedings from which this appeal emanates, an application for the extension of the grant of legal aid to cover this appeal ought to have been made and, in the absence of that occurring, the first respondent is not entitled to costs. The argument appears to be that, if the first respondent’s grant of legal aid in relation to the Family Court proceedings has not been withdrawn, then it would have covered this appeal had application been made for it to continue.

[4]    It is evident from Ms Mills-Godinet’s memoranda that the first respondent did not apply for legal aid to cover the appeal. Further, Ms Mills-Godinet submitted that a separate grant of legal aid would need to have been made and it was up to the first respondent to decide whether she chose to make such an application or not. Although acknowledging that the obligation of counsel is to ensure that the party is aware they may be eligible to apply and noting that not all counsel undertake appeal work on legal aid or are approved to undertake such work by legal services, without specifying whether either of these scenarios apply in this case, Ms Mills-Godinet submits that costs in the sum of $11,711 are payable under a category 2B basis to the first respondent.

[5]    It is clear that the first respondent has not applied for legal aid for this appeal. It is impossible for me to decide on the information I have before me whether Mr

Tobeck is right about the grant of legal aid extending to cover this appeal, as Ms Mills- Godinet challenges that view. In any event, even if expressed somewhat cryptically, the first respondent has chosen not to advance a grant of legal aid for this appeal, either by way of an extension or a fresh application. The question therefore, in my view, is whether the Court, in its discretion, should award costs to the first respondent at all.

[6]    In relation to this issue, the subject matter of the appeal is an important consideration. The appeal was against the decision of the Family Court to decline to join the second respondents to the proceeding. In this regard, the main argument on appeal was for the second respondents to run. However, given the factual basis for the appeal, the first respondent was inevitably required to be involved in it. In my view, the legal issues involved predominantly concerned the second respondents, and the argument in the High Court was largely advanced by counsel for  the second respondents.

[7]    I consider there was a considerable community of interest shared by the first and second respondents in the issue that had been before the Family Court and which was brought to the High Court on appeal. Although it was appropriate for the first respondent to be separately represented, by analogy, r 14.15 of the HCR could apply. Put another way and recognising the reality of the argument before this Court, the first and second respondents had common or overlapping interests in relation to the issues on appeal.

[8]    Having said that, because the Trust is a separate legal entity and because the proceedings overall specifically concern the first respondent, it was appropriate and necessary for the first respondent to be separately represented on appeal.

[9]    The issue for me however is whether, under r 14.7 of the HCR, the first respondent’s costs should be reduced because arguments for the respondents were effectively the same and both respondents desired the same outcome.

[10]   I have decided that it was appropriate for the first respondent to have counsel to maintain a watching brief during the hearing and to take the steps outlined in items 53-55 and 57 of the second schedule. But I am not persuaded that costs should be

awarded to the first respondent for the preparation of written submissions because of the matters I have outlined above.

[11]   This means that I have decided it is appropriate to award costs in favour of the first respondent for items 53-55 and 57 as claimed. This amounts of 1.9 days at $2,390 per day, which amounts to $4,541.

Result

[12]   The appellant is ordered to pay costs in the amount of $12,667 to the second respondent and costs of $4,541 to the first respondent.

Harland J

Solicitors:

Menzies Marshall Law Limited, Winton Trollope & Co, Christchurch

Cameron & Co, Christchurch.