McGarvey v Temo

[2009] NZCA 29

IN THE COURT OF APPEAL OF NEW ZEALAND

CA315/2007
[2009] NZCA 29

BETWEENHAKEKE JACKIE MCGARVEY

Appellant

ANDHINA TEMO

Respondent

Court:William Young  P, Hammond and Ellen France JJ

Counsel:M P Armstrong for Appellant

J A N Patuawa and J J Lang for Respondent

Judgment:23 February 2009 at 2.30 pm

(on the papers)

JUDGMENT OF THE COURT

AThe application for costs is declined.

BWe specify, for the purpose of s 40(5) of the Legal Services Act 2000, that the respondent would have had costs of $9,600 together with usual disbursements save for the fact that the appellant was legally aided.

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

[1] In a judgment delivered on 19 September 2008, this Court dismissed an appeal by the appellant, Hakeke McGarvey: [2008] NZCA 375. The appeal related to the validity of a will dated 17 March 1945. Costs were reserved.

[2]       Both the appellant and the respondent are legally aided.  The respondent has been required to pay a contribution of $2,860 by the Legal Services Agency.  The respondent now seeks costs of that amount in this Court.  The appellant opposes an award.

Discussion

[3]       The liability for costs for a legally aided person is decided in terms of s 40 of the Legal Services Act 2000.  That section relevantly reads:

(1)If an aided person receives legal aid for civil proceedings, that person’s liability under an order for costs made against him or her with respect to the proceedings must not exceed an amount (if any) that is reasonable for the aided person to pay having regard to all the circumstances, including the means of all the parties and their conduct in connection with the dispute.

(2)No order for costs may be made against an aided person in a civil proceeding unless the court is satisfied that there are exceptional circumstances.

(3)In determining whether there are exceptional circumstances under subsection (2), the court may take account of, but is not limited to, the following conduct by the aided person:

…

(d)any unreasonable pursuit of 1 or more issues on which the aided person fails:

…

(4)Any order for costs made against the aided person must specify the amount that the person would have been ordered to pay if this section had not affected that person’s liability.

(5)If, because of this section, no order for costs is made against the aided person, an order may be made specifying what order for costs would have been made against that person with respect to the proceedings if this section had not affected that person’s liability.

…

[4]       The respondent says that in terms of s 40(2) there are exceptional circumstances that warrant the making of an award of costs.  The submission is that the exceptional circumstances arise from s 40(3)(d), that is, “any unreasonable pursuit of 1 or more issues on which the aided person fails”.

[5]       In developing this submission, the respondent maintains that much of the appeal was an appeal against the factual findings of the High Court.  The respondent also relies on the hardship imposed on him, as a superannuitant, by the requirement that he make a contribution to the Legal Services Agency.

[6]       The appellant says there are no exceptional circumstances noting that a party can appeal a finding of fact.  Further, the appellant submits, the fact that the argument advanced was not accepted does not of itself make it unreasonable.  Finally, the appellant observes that he, too, is a superannuitant and cannot afford to pay costs either.

[7]       We consider that the test in s 40(2) is not met as there are no exceptional circumstances in terms of s 40(3)(d).  While the appellant was unsuccessful, it was not unreasonable to pursue the appeal in the way he did.  In that context, it is relevant that there were some novel aspects to the case, for example, the reliance on Tuhoe tikanga as demonstrating doubts as to the validity of the will in question.  Further, as was noted in the judgment at [27], on one quite important aspect as to the circumstances surrounding the execution of the will, the respondent’s evidence was lacking in some clarity.  Finally, the appeal did raise some quite technical issues about what statutory regime applied.  In all those circumstances, we conclude the test in s 40(3)(d) is not met.  We decline to make an award of costs.  We see no good reason, however, for declining to make an order under s 40(5) stating what order for costs would have been made but for s 40.  We make an order accordingly.

Solicitors:

Rangitauira & Co, Rotorua for Appellant
Kensington Swan, Wellington for Respondent