MacKay v Blair

[2024] NZHC 3300

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-409-437

[2024] NZHC 3300

BETWEEN

TAKOTO HIWI MACKAY (by her litigation guardian MELISSA ANNE CHOPPIN)

Plaintiff

AND

MERE DOROTHY HANA BLAIR

Defendant

Hearing:	(On the papers)
Counsel:	R L Powell and A J Douglass for Plaintiff P A Cowey and V A Reid for Defendant
Judgment:	7 November 2024

JUDGMENT OF ASSOCIATE JUDGE LESTER

(costs)

MACKAY v BLAIR [2024] NZHC 3300 [7 November 2024]

[1]                 On 29 August 2024, Osborne J dismissed Ms MacKay’s claim against her daughter, Ms Blair.1 Ms MacKay claimed an interest in a property owned by Ms Blair and had lodged a caveat over Ms Blair’s property. With Ms MacKay’s claim failing, Ms Blair applied to lapse Ms MacKay’s caveat.

[2]                 Ms MacKay has appealed the 29 August 2024 judgment and sought to maintain her caveat pending the outcome of her appeal. To that end, Ms MacKay, through her litigation guardian, applied for a stay of enforcement of Osborne J’s decision and filed a separate originating application to sustain the caveat.

[3]                 In respect of the application to sustain the caveat, an order was made essentially by consent on 17 October 2024 sustaining the caveat until the outcome of the appeal. Costs on that application are reserved.

[4]                 In respect of the stay application, costs were also reserved when the application was called on 17 October 2024 to be determined following the filing of memoranda which have now been received.

[5]                 Ms Blair seeks costs on the grounds that the stay application was unnecessary and with it being withdrawn by consent, Ms Blair was the successful party and costs should follow the event.

[6]                 Counsel for Ms Blair notes that in substance, the stay application was misconceived as the only decision capable of being stayed following the dismissal of Ms MacKay’s claim was the payment of costs which had not been fixed at the time of the application. I agree.

[7]                 While Ms Blair’s solicitor did in correspondence at one stage refer to a stay being required, as I have said, that was not correct.

[8]                 I am satisfied that the stay was unnecessary and that Ms MacKay would be obliged to pay costs in respect of the opposition filed to the application for a stay but for the fact she has now been granted legal aid.

1      Mackay v Blair [2024] NZHC 2459.

[9]                 I should note that at the time Ms MacKay, through her litigation guardian, requested that Ms Blair withdraw her application to lapse the caveat, the appeal had not been filed.

[10]              Ms Blair’s solicitors sought that some indication of Ms MacKay’s proposed grounds of appeal be provided before Ms Blair could be expected to be advised as to whether Ms MacKay continued to have a reasonably arguable caveatable interest.

[11]              The application for stay was withdrawn on 17 October 2024. I was not told on that date that Ms MacKay had sought legal aid. Ms Powell, counsel for Ms MacKay, has filed a memorandum dated 24 October 2024 advising that Ms MacKay has been granted legal aid in respect of the originating application to sustain the caveat and the interlocutory application to stay.

[12]The authors of McGechan on Procedure provide:2

Until the Agency has determined an application for legal aid, costs are to be dealt with on the basis that the party is not legally aided… That remains the position where costs are allowed but not fixed until after legal aid has been granted.

[13]              On 17 October 2024, costs were not granted in favour of Ms Blair, rather the direction was that costs were reserved.

[14]              While Ms MacKay is here represented by a litigation guardian, McGechan on Procedure  provides, with reference to s 45(6) of the Legal Services Act 2011, that   a litigation guardian also receives the benefit of s 45 of that Act.3

[15]              However, s 45 applies to an “aided person” and therefore does not apply before a person is granted legal aid.4

[16]              That said, as already noted, costs had not been determined before the Court was told of the grant of legal aid. McGechan notes that where a court is determining

2      Jessica Gorman and others McGechan on Procedure (online ed, Thomson Reuters) at [HRPt14.11(3)].

3      At [HRPt14.11(2)(f)].

4      At [HRPt14.11(2)(a)].

costs and is advised that one party has applied for legal aid and their application is yet to be determined, it would normally be appropriate to adjourn or hold over the issue of costs until that application is determined.5 Here, before costs were determined, an application for legal aid was granted.

[17]              But for the application for legal aid having been granted, costs would have been awarded to Ms Blair on a 2B basis.

[18]              Ms MacKay,  however,  applies  for  costs.  There  is  no  basis  to  award   Ms MacKay costs on the stay application. As noted, it was unnecessary. Ms Powell refers to conduct before the stay application was made saying that those actions caused the application to be brought. Generally, pre-commencement conduct is not relevant to the issue of costs.

[19]              The reality here is that Ms MacKay has had an indulgence. I note here that through counsel’s oversight, the appeal was not served at the time it was filed, therefore rendering the appeal technically out of time. Ms Blair responsibly did not take the point. Having received an indulgence not only in terms of the timing of the appeal but with Ms Blair also taking the practical approach of not seeking to challenge whether a caveatable interest exists, given a commitment to pursue the appeal expeditiously, there is no basis for Ms MacKay to seek costs and her application in that regard is declined.

Associate Judge Lester

Solicitors:

Cameron & Co, Christchurch Parry Field, Christchurch Fee Langstone, Auckland

Copy to counsel:
R Powell, Barrister, Christchurch

5      Jessica Gorman and others, above n 2, at [HRPt14.11(3)].