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Mailley v Shaw

Mailley v Shaw

Case [2025] NZCA 533 16 October 2025

Civil Litigation & Procedure

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA597/2021
CA643/2021
CA39/2022
CA332/2022
CA402/2022

[2025] NZCA 533

BETWEEN	MARTIN MAILLEY Applicant
AND	ANTONY SHAW First Respondent NEW ZEALAND LAW SOCIETY \| TE KĀHUI TURE O AOTEAROA Second Respondent

Hearing:	7 April 2025
Court:	French P, Hinton and Whata JJ
Counsel:	No appearance by Applicant F E Geiringer for First Respondent T P Mullins and K M Hursthouse for Second Respondent
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mailley v Shaw

Details

AGLC: Mailley v Shaw [2025] NZCA 533
Case: [2025] NZCA 533
Decision Date: 16 October 2025 at 11:00 am

CaseChat Overview and Summary

The case of Mailley v Shaw involved multiple costs applications brought by the first respondent, Mr Shaw, and the second respondent, the New Zealand Law Society (NZLS), against Mr Mailley, who was self-represented, in relation to failed or abandoned applications made by him in the context of appeals or applications for leave to appeal in the Court of Appeal of New Zealand. Mr Mailley opposed the costs and related orders sought. The legal issues before the Court included whether it had jurisdiction to order costs in interlocutory proceedings, the proper daily recovery rate to be applied, the appropriate form for sealing costs orders, whether costs could be awarded on abandoned appeals, and whether an uplift was warranted on the basis of the proceedings being without merit. The Court held that it did have jurisdiction to order costs in interlocutory proceedings, the daily recovery rate applicable at the time of the step should be applied, the proper form for sealing costs orders was form 6, costs could be awarded on abandoned appeals, and a 25 per cent uplift was appropriate in one instance.

The Court found that the procedural course taken by Mr Mailley had been devoid of merit, and therefore awarded the uplift sought by Mr Shaw. The Court then addressed the individual costs applications, finding that the respective steps identified in the appendices had been properly taken and costs correctly calculated. The Court ordered Mr Mailley to pay costs to Mr Shaw of $15,116.75 and costs to NZLS of $15,522.08. The Court also directed the Registrar to seal certain judgments and declined an application to review the sealing of a judgment. Finally, the Court directed the Registrar to refuse to accept any further applications or memoranda from Mr Mailley in the five proceedings.

Orders