McGarvey v Temo

The Court of Appeal of New Zealand dismissed an appeal by Hakeke McGarvey against a decision of the High Court regarding the validity of a will dated 17 March 1945. The appeal related to the interpretation of the will and its compliance with statutory requirements. Costs were reserved in the appeal. Both parties in the appeal were legally aided, and the respondent, Hina Temo, was required to make a contribution of $2,860 to the Legal Services Agency. The respondent sought costs of that amount in the Court of Appeal, which the appellant opposed.

The court had to determine whether there were exceptional circumstances under section 40(2) of the Legal Services Act 2000, which would allow an award of costs against a legally aided person. The respondent argued that exceptional circumstances existed because the appellant unreasonably pursued issues on which he ultimately failed, as per section 40(3)(d) of the Act. The appellant opposed the claim for costs, arguing that appealing factual findings was not unreasonable and that both parties were financially disadvantaged as superannuitants.

The Court of Appeal held that there were no exceptional circumstances warranting an award of costs against the appellant. The court found that the appeal was not unreasonable, considering the novel aspects of the case and some technical issues regarding the applicable statutory regime. The court also noted that the respondent's evidence was lacking in clarity on certain points. Consequently, the court declined to make an award of costs against the appellant. However, it made an order under section 40(5) of the Act, specifying the amount of costs that would have been awarded if the appellant had not been legally aided.