Mailley v Shaw
[2025] NZCA 533
•16 October 2025 at 11:00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA597/2021 |
| BETWEEN | MARTIN MAILLEY |
| AND | ANTONY SHAW |
| Hearing: | 7 April 2025 |
Court: | French P, Hinton and Whata JJ |
Counsel: | No appearance by Applicant |
Judgment: | 16 October 2025 at 11:00 am |
JUDGMENT OF THE COURT
A Mr Mailley is to pay Mr Shaw costs totalling $15,116.75, as set out in appendix 1.
BMr Mailley is to pay NZLS costs and disbursements totalling $15,522.08, as set out in appendix 2.
CWe direct the Registrar to seal the judgments recorded in [2022] NZCA 180 in CA643/2021, in [2023] NZCA 659 in CA39/2022 and to also seal any other judgments that require sealing consequent upon these orders.
D The application to review the judgment recorded in [2024] NZCA 315 in CA39/2022 is declined.
EProceedings CA597/2021, CA643/2021, CA39/2022, CA332/2022 and CA402/2022 are now concluded. We direct the Registrar to refuse to accept any further applications or memoranda from Mr Mailley in these five proceedings.
____________________________________________________________________
REASONS OF THE COURT
(Given by Hinton J)
This judgment relates to a number of costs applications brought by the first respondent, Mr Shaw, and the second respondent, the New Zealand Law Society | Te Kāhui Ture o Aotearoa (NZLS), in respect of failed or abandoned applications made by Mr Mailley in the context of appeals or applications for leave to appeal brought by him in this Court.
Mr Mailley opposes the costs and related orders sought.
Mr Mailley has been self-represented. As his original proceeding was filed in the High Court in 2015, the Judicature Act 1908 applies and the costs applications were required to be heard orally by a panel of three judges.[1] Mr Mailley filed submissions and was served with the fixture notice. The Registrar called outside the Courtroom but there was no appearance by Mr Mailley.
Background
[1]Senior Courts Act 2016, sch 5 cl 10. See also Sutcliffe v Tarr [2017] NZCA 360, [2018] 2 NZLR 92 at [12], [22] and [33]; and Skelton v Howcroft [2018] NZCA 140 at [9].
It is unnecessary for purposes of this decision to set out the convoluted historical background to the present judgment. Suffice to say that back in 2005 the Queensland District Court issued a warrant for Mr Mailley’s arrest.[2] For a period of about a year in 2008 to 2009 Mr Mailley was legally represented by Mr Shaw.[3]
[2]Mailley v Shaw [2021] NZHC 2359 at [12] [High Court review judgment].
[3]At [15], [25], [27] and [31].
After protracted litigation, Mr Mailley was extradited from New Zealand to Australia in 2016.[4]
[4]See Mailley v District Court at North Shore [2016] NZCA 83.
In June 2015, Mr Mailley commenced litigation against Mr Shaw, alleging failings of conduct as legal counsel. He joined NZLS on the basis that they had failed to investigate his complaints against Mr Shaw (made between 2010 and 2013). That proceeding was struck out and costs ordered against Mr Mailley.[5] He applied for review which was also unsuccessful.[6]
[5]Mailley v Shaw [2020] NZHC 3102 [High Court strike out judgment] at [146].
[6]High Court review judgment, above n 2, at [130].
Mr Mailley then brought five appeals or applications for leave to appeal, all essentially mounting attacks on the review judgment. Each was allocated a separate CA number: CA597/2021, CA643/2021, CA39/2022, CA332/2022 and CA402/2022. Mr Mailley also brought various interlocutory applications in respect of each of these matters. With one minor exception, all appeals and applications have either been dismissed or abandoned. In some instances costs orders have been made and in others not.
The respondents each seek costs in relation to those matters where costs have not been ordered and directions for the sealing of costs orders already made.[7]
[7]There is also one minor review application outstanding.
Before turning to the individual proceedings, we address the objections taken by Mr Mailley to the current applications, these being all of a general and technical nature, none of which we consider has any merit.
Jurisdiction to order costs
Mr Mailley suggests that this Court does not have jurisdiction to order costs in interlocutory proceedings because there was no express provision to that effect in the Court of Appeal (Civil) Rules 2005 (the Rules) prior to 2022, that being the relevant time period.[8]
[8]Rule 53(c) of the Court of Appeal (Civil) Rules 2005 was inserted by r 27 of the Court of Appeal (Civil) Amendment Rules 2022 which came into force on 7 April 2022.
We disagree. Rule 53 of the Rules provided until 2022 that the Court can make an order for costs and disbursements of an appeal or an application for leave to appeal. It did not expressly provide for interlocutory applications brought in the context of an appeal or application for leave to appeal until the Rules were amended in 2022 to add a provision for costs on such applications.
However, it is clear that the amendment in 2022 was for the purposes of clarifying an existing ability to order costs, and not to create a new power. It goes without saying that interlocutory steps form part of an appeal or an application for leave to appeal and that position was confirmed, for example, in Deliu v Johnstone.[9] Further, sch 2 of the Rules, which had been in force since 2018, provided for time allocations on costs for “[a]ll other interlocutory applications”, being applications other than applications for leave to appeal themselves.
[9]Deliu v Johnstone [2021] NZCA 488 at [8]. See also Collins & May Law v Memelink [2018] NZCA 29 at [3].
As would be expected, given the general rule that costs follow the event, this Court has jurisdiction to order costs on the current applications.[10]
Daily recovery rate
[10]For completeness, as counsel for Mr Shaw raised, s 51G of the Judicature Act 1908 also provided a broad jurisdiction for courts to award costs.
The respondents seek costs at the rate applicable at the time of the step for which costs are sought, an approach on which the authorities are consistent. Mr Mailley says the Court should apply the rates that were in place before 1 March 2017 because his original proceeding was filed before then. This argument has already been rejected by this Court in the context of security for costs in Mr Mailley’s own litigation,[11] and by the Supreme Court when leave to appeal that decision was denied.[12] This Court held that the particular daily recovery rate is the one in force at the time security for costs was set.[13] We consider the same reasoning applies. We therefore uphold the daily rate of $2,390 sought by the respondents for a standard appeal, that being the rate applicable since 1 August 2019, before the first steps in these matters.[14]
Proper form for sealing
[11]Mailley v Shaw [2022] NZCA 180 [CA643/2021 recall judgment].
[12]Mailley v Shaw [2022] NZSC 93 [Supreme Court leave judgment].
[13]CA643/2021 recall judgment, above n 11, at [16]–[18].
[14]Court of Appeal (Civil) Rules, r 53C(1)(a).
As noted above, in a number of instances costs orders have already been made. NZLS has taken responsibility for the sealing of these orders on behalf of both respondents. In several instances Mr Mailley has objected to sealing and the Registrar is awaiting directions in this regard.
NZLS has filed judgments for sealing using the present form template: form 6 of the Rules.[15] Mr Mailley objects to the use of form 6, saying the appropriate template is from the pre-2017 version of the Rules (form 3). That is not correct. Rule 51(2) of the Rules requires use of form 6 with any necessary modifications and that form therefore applies. We note that in fact r 51(2) of the pre-March 2017 Rules, only stated that form 3 “may” be used and did not require it. The two forms are, in any event, substantially identical and if there were any technical non-compliance it would be excusable in terms of r 6.
Costs on abandoned appeals
[15]Schedule 1.
Three of the appeals in respect of which costs are sought (CA597/2021, CA332/2022 and CA402/2022) were abandoned by Mr Mailley.[16] He submits that the steps taken should not attract costs orders because the appeals were not ultimately decided on the merits. That is, of course, incorrect. The default position under r 44(3) is that costs may still be awarded after abandonment, and that is the ordinary course. There is no question but that this course should be followed here and Mr Mailley is liable for costs on the abandoned appeals.
Costs uplift
[16]Pursuant to r 44.
In respect of one matter, a recall application under CA39/2022, Mr Shaw seeks a 25 per cent uplift to costs on the basis it was entirely without merit in terms of r 53E(2)(b)(ii). The uplift sought is in the sum of $537.75. Mr Shaw says that the Supreme Court acknowledged the “lengthy and tortuous procedural history” since Mr Mailley commenced litigation.[17] He submits that there have been approximately 90 steps caused by Mr Mailley since his proceeding was struck out in the High Court on 24 November 2020.
[17]Supreme Court leave judgment, above n 12, at [2].
We accept that whatever the exact number of steps, the procedural course taken by Mr Mailley has been devoid of merit, as is the case with this particular application. It was “hopeless” and “fundamentally misconceived”, warranting a 25 per cent uplift of $537.75.[18] In fact, we consider it restrained of the respondents to not seek uplifts on more of the matters before this Court.
The individual costs applications
[18]Oxygen Air Ltd v LG Electronics Australia Pty Ltd [2020] NZHC 1863 at [22]–[23]. We are, in this regard, applying the High Court Rules 2016 by analogy.
We address below the applications made on each proceeding in this Court.
Attached as appendix 1 is a summary of the costs orders sought by Mr Shaw and, as appendix 2, the costs orders sought by NZLS. All costs have been calculated on a band A basis except the one instance referred to immediately above. The breakdown of each costs award referred to below is as set out in these appendices, unless stated otherwise. We note this Court has recently said that “[a]bsent any reason to the contrary, courts will rely on a lawyer’s obligation not to mislead the courts for their accurate statement of costs”.[19]
CA597/2021
[19]Harborow v Deliu [2025] NZCA 41 at [4(c)], citing Lawyers and Conveyancers Act 2006, s 4; and Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, r 13.1.
This file concerned an appeal brought by Mr Mailley against a decision of the High Court restricting his submissions to three pages.[20] He applied to this Court for a stay of the High Court hearing pending this Court’s judgment on the appeal. Brown J directed that Mr Mailley must first apply to the High Court for a stay, which he did, and which was declined. Mr Mailley then revived his stay application in this Court which was also declined.[21] Costs were reserved on that application.[22]
[20]High Court review judgment, above n 2, at [134(b)].
[21]Mailley v Shaw [2021] NZCA 593.
[22]At [13].
Mr Mailley abandoned the appeal on 12 November 2021 pursuant to r 44.
The respondents each seek costs on the steps taken on the stay application as set out in the appendices. Their costs are the same except that Mr Shaw undertook an additional step on the morning of a hearing on 8 November 2021 when he filed a memorandum to provide this Court with relevant material that Mr Mailley had filed in the High Court. Mr Shaw therefore includes an additional item in the sum of $478.
We are satisfied that the respective steps identified in the appendices have been properly taken and costs correctly calculated. We consider that the costs sought in each instance are appropriate. In this matter, Mr Mailley is ordered to pay costs to Mr Shaw of $3,824 and costs to NZLS of $3,346.
CA643/2021
This file concerned an appeal brought by Mr Mailley against a decision of the High Court declining two applications for recall.[23] After the appeal was filed Mr Mailley applied to dispense with security for costs. This was declined by the Registrar. His review of the Registrar’s decision was declined by Collins J.[24] An application for recall of Collins J’s decision was declined,[25] an application for leave to appeal the recall decision to the Supreme Court was declined[26] and an application for recall of the Supreme Court’s decision was also declined.[27]
[23]Mailley v Shaw [2021] NZHC 2876 at [13] and [17].
[24]Mailley v Shaw [2022] NZCA 41 at [27].
[25]CA643/2021 recall judgment, above n 11.
[26]Supreme Court leave judgment, above n 17.
[27]Mailley v Shaw [2022] NZSC 100.
The appeal was deemed abandoned under r 43 on 12 September 2022.
An order for costs was made against Mr Mailley on 12 May 2022.[28] He opposed sealing of the judgment in respect of that order. NZLS seeks a direction that the costs order be sealed.[29] It also seeks an order fixing costs in respect of the security for costs and recall application in the sum of $956 and disbursements in the sum of $56.52 for sealing the judgment. Mr Shaw seeks costs on the same applications in the sum of $956.
[28]CA643/2021 recall judgment, above n 11, at [21].
[29]For completeness, we note NZLS sought in their written submissions that a judgment dated 19 December 2023 be sealed. NZLS clarified in their oral submissions that this was in error; it is only the judgment dated 12 May 2022 that requires sealing.
For the same reasons and on the same basis as above, we make an order for costs and disbursements in favour of NZLS in the total sum of $1,012.52 and an order for costs in favour of Mr Shaw in the sum of $956.
For the reasons set out above we direct the Registrar to seal the judgment dated 12 May 2022.
CA39/2022
Mr Mailley applied for special leave to appeal the underlying strike out.[30] The application was declined with an order for costs made on 19 December 2023.[31] NZLS requested that judgment be sealed, which is still outstanding. Mr Mailley applied for recall, which failed,[32] and NZLS sought costs on 17 April 2024, that application being before us. Mr Mailley then applied for review of the refusal to recall which failed, with an order for costs made on 15 July 2024. NZLS has sealed that judgment and Mr Mailley applied to review that sealing. That last review application has not been addressed.
[30]High Court review judgment, above n 2; and High Court strike out judgment, above n 5.
[31]Mailley v Shaw [2023] NZCA 659.
[32]Mailley v Shaw [2024] NZCA 315.
There is no legitimate basis for Mr Mailley to review the sealing of the judgment dated 15 July 2024. The judgment stands and has been properly sealed. The application to review is formally declined.
Mr Shaw seeks costs in relation to the applications for leave to appeal, recall (including the uplift discussed earlier at [18]) and review of the recall, totalling $6,273.75 as set out in appendix 1.[33] NZLS seek costs and disbursements on the applications for leave to appeal, recall, review of recall, and opposition to sealing, totalling $5,849.04 as set out in appendix 2.
[33]We note for completeness that at the hearing counsel for Mr Shaw requested the costs for the review of the recall application.
For the same reasons, and on the same basis as above, we find that costs and disbursements are payable in the sums set out above.
Finally on this matter, for the reasons given earlier in this judgment we direct that the 19 December 2023 costs order be sealed.
CA332/2022
This file concerned an appeal brought by Mr Mailley against a judgment of the High Court declining leave to appeal against a review of its costs decision on strike out.[34] Mr Mailley applied to dispense with security for costs which was declined by the Registrar. He applied for a review of the Registrar’s decision which was declined by Miller J.[35] He applied for recall of Miller J’s decision, and an extension of time to apply for a hearing date and to file the case on appeal, but this was never determined as Mr Mailley then filed a notice of abandonment of his appeal pursuant to r 44.
[34]Mailley v Shaw [2022] NZHC 1317.
[35]Mailley v Shaw [2022] NZCA 638.
The respondents each seek costs for steps taken in respect of the applications for dispensation of security for costs, recall and extension of time, in the sum of $1,195, as set out in the respective appendices.
For the same reasons, and on the same basis as above, we find that costs and disbursements are payable in the sums set out above.
CA402/2022
This file concerned an appeal brought by Mr Mailley against a decision of the High Court awarding costs to the respondents following a successful strike out application.[36] Mr Mailley applied to dispense with security for costs which was declined by the Registrar. He applied for a review of the Registrar’s decision which was declined by Miller J.[37] He applied for recall of Miller J’s judgment which was declined.[38] He then filed a notice of abandonment of the appeal pursuant to r 44.
[36]Mailley v Shaw HC Auckland CIV-2015-404-1185, 13 July 2022 (Minute of Toogood J).
[37]Mailley v Shaw [2022] NZCA 558.
[38]Mailley v Shaw [2023] NZCA 33.
Mr Shaw seeks costs in respect of the application to dispense with security for costs and an application for an extension of time, in the sum of $717 as set out in appendix 1. NZLS seeks costs for steps taken in respect of the applications to dispense with security for costs and extension of time, and also in respect of the application for recall, in a total sum of $1,673, as set out in appendix 2.
For the same reasons, and on the same basis as above, we find that costs and disbursements are payable in the sums set out above.
Costs on costs
The parties seek costs on costs — that is costs in respect of the submissions they have had to file for this hearing and for the hearing itself. Mr Mailley says no further costs should be awarded. Costs on costs are a matter of the Court’s discretion.[39] We are satisfied that in this case costs should be awarded. Both parties have had to incur further costs responding to Mr Mailley’s persistent procedural objections and attempts to avoid consequences of prior orders, in terms of objecting to sealing.
[39]See Strata Title Administration Ltd v Body Corporate Administration Ltd [2014] NZCA 96 at [14] which implicitly recognised the jurisdiction to award costs on a costs application. See also Body Corporate Administration Ltd v Mehta (No 4) [2013] NZHC 213 at [85].
Mr Mailley’s submissions, taken as a whole, are technical, repetitive, and largely disconnected from the practical administration of justice. He advances narrow interpretations of rules to avoid what would otherwise be the ordinary and expected outcome: that the losing party pays costs to the party that succeeds.[40]
[40]Court of Appeal (Civil) Rules, r 53A(1)(a).
This is clearly an appropriate case to award costs in favour of the respondents on the additional steps they have had to take on their costs’ applications, both in terms of filing submissions and attending the hearing, which as noted Mr Mailley did not.
NZLS seeks costs and disbursements in the sum of $2,446.52 as set out in appendix 2, including disbursements for sealing of the judgment of $56.52. Mr Shaw seeks costs in the sum of $2,151 as set out in appendix 1. We consider these costs to be appropriate and order accordingly.
Result
Mr Mailley is to pay Mr Shaw costs totalling $15,116.75, as set out in appendix 1.
Mr Mailley is to pay NZLS costs and disbursements totalling $15,522.08, as set out in appendix 2.
We direct the Registrar to seal the judgments recorded in [2022] NZCA 180 in CA643/202, in [2023] NZCA 659 in CA39/2022 and to also seal any other judgments that require sealing consequent upon these orders.
The application to review the judgment recorded in [2024] NZCA 315 in CA39/2022 is declined.
Proceedings CA597/2021, CA643/2021, CA39/2022, CA332/2022 and CA402/2022 are now concluded. We direct the Registrar to refuse to accept any further applications or memoranda from Mr Mailley in these five proceedings.
Solicitors:
Ord Legal, Wellington for First Respondent
LeeSalmonLong, Auckland for Second Respondent
APPENDIX 1 — Mr Shaw costs
| Step | Date | Description | Time | Costs |
| CA597/2021 | ||||
| 9 | 13-Oct-21 | Memorandum in opposition | 0.2 | $478 |
| 9 | 3-Nov-21 | Memorandum in opposition | 0.2 | $478 |
| 9 | 8-Nov-21 | Memorandum for HC documents | 0.2 | $478 |
| 11 | 8-Nov-21 | Preparation for defended hearing | 0.5 | $1,195 |
| 12 | 8-Nov-21 | Appearance at defended hearing | 0.5 | $1,195 |
| Total | 1.6 | $3,824 | ||
| CA643/2021 | ||||
| 9 | 9-Dec-21 | Memorandum of opposition (security) | 0.2 | $478 |
| 9 | 14-Apr-22 | Submissions in opposition (recall) | 0.2 | $478 |
| Total | 0.4 | $956 | ||
| CA39/2022 | ||||
| Leave to appeal | ||||
| 3 | 14-Jun-22 | Memorandum of opposition | 0.4 | $956 |
| 4 | 12-Aug-22 | Submissions in opposition | 1.0 | $2,390 |
| Recall | ||||
| 9 | 27-Feb-24 | Memorandum of opposition | 0.2 | $478 |
| 11 | 19-Mar-24 | Submissions in opposition | 0.5 | $1,195 |
| 9 | 26-Mar-24 | Memorandum opposing further submissions | 0.2 | $478 |
| 25 per cent uplift | $537.75 | |||
| Review of recall | ||||
| 9 | 14-May-24 | Memorandum of opposition 50% | 0.1 | $239 |
| Total | $6,273.75 | |||
| CA332/2022 | ||||
| 9 | 15-Aug-22 | Submissions in opposition (security) | 0.2 | $478 |
| 9 | 1-Feb-23 | Memorandum of opposition (recall) | 0.2 | $478 |
| 9 | 13-Feb-23 | Memorandum of opposition (extend time) 50% | 0.1 | $239 |
| Total | 0.5 | $1,195 | ||
| CA402/2022 | ||||
| 9 | 20-Sept-22 | Memorandum of opposition (security) | 0.2 | $478 |
| 9 | 13-Feb-23 | Memorandum of opposition (extend time) 50% | 0.1 | $239 |
| Total | 0.3 | $717 | ||
| Costs on costs | ||||
| 9 | 14-Apr-24 | Memorandum on costs | 0.2 | $478 |
| 9 | 11-Oct-24 | Memorandum on costs | 0.2 | $478 |
| 12 | 7-Apr-25 | Appearance at defended hearing | 0.5 | $1,195 |
| Total | 0.9 | $2,151 | ||
| Grand Total | $15,116.75 | |||
APPENDIX 2 — NZLS costs
| Step | Date | Description | Time | Costs |
| CA597/2021 | ||||
| 9 | 12-Oct-21 | Memorandum in opposition | 0.2 | $478 |
| 9 | 3-Nov-21 | Further memorandum in opposition | 0.2 | $478 |
| 11 | 3-Nov-21 | Preparation for defended hearing | 0.5 | $1,195 |
| 12 | 8-Nov-21 | Appearance at defended hearing | 0.5 | $1,195 |
| Total | 1.4 | $3,346 | ||
| CA332/2022 | ||||
| 9 | 15-Aug-22 | Submissions in opposition | 0.2 | $478 |
| 9 | 27-Jan-23 | Memorandum of opposition | 0.2 | $478 |
| 9 | 10-Feb-23 | Memorandum of opposition 50% | 0.1 | $239 |
| Total | 0.5 | $1,195 | ||
| CA402/2022 | ||||
| 9 | 20-Sept-22 | Memorandum of opposition (security) | 0.2 | $478 |
| 9 | 19-Dec-22 | Memorandum of opposition (recall) | 0.2 | $478 |
| 9 | 27-Jan-23 | Memorandum of opposition (recall) | 0.2 | $478 |
| 9 | 10-Feb-23 | Memorandum of opposition (extend time) 50% | 0.1 | $239 |
| Total | 0.7 | $1,673 | ||
| CA643/2021 | ||||
| 9 | 9-Dec-21 | Memorandum of opposition (security) | 0.2 | $478 |
| 9 | 1-Apr-22 | Submissions in opposition (recall) | 0.2 | $478 |
| Disbursements | ||||
| 6 | 23-Jul-24 | Sealing judgment | $56.52 | |
| Total | 0.4 | $1,012.52 | ||
| CA39/2022 | ||||
| Leave to appeal | ||||
| 3 | 14-Jun-22 | Memorandum of opposition | 0.4 | $956 |
| 4 | 12-Aug-22 | Submissions in opposition | 1.0 | $2,390 |
| Disbursements | ||||
| 6 | 20-Aug-24 | Sealing judgment | $56.52 | |
| Recall | ||||
| 9 | 27-Feb-24 | Memorandum of opposition | 0.2 | $478 |
| 11 | 20-Mar-24 | Submissions in opposition | 0.5 | $1,195 |
| Review of recall | ||||
| 9 | 14-May-24 | Memorandum of opposition 50% | 0.1 | $239 |
| Disbursements | ||||
| 6 | 15-Jul-25 | Sealing judgment | $56.52 | |
| Sealing | ||||
| 9 | 1-Aug-24 | Memorandum in opposition (sealing) | 0.2 | $478.00 |
| Total | 2.4 | $5,849.04 | ||
| Costs on costs | ||||
| 11 | 20-Aug-24 | Submissions on costs | 0.5 | $1,195.00 |
| 12 | 7-Apr-25 | Appearances at defended hearing | 0.5 | $1,195.00 |
| Disbursements | ||||
| 6 | Sealing judgment | $56.52 | ||
| Total | 1.0 | $2,446.52 | ||
| Grand total | $15,522.08 | |||
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