Murphy v Murphy - [2013] NZHC 2145

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CIV-2010-463-797 [2013] NZHC 2145

BETWEEN CHEYNE DENNIS MURPHY Plaintiff

AND

ROBYN STEPHANIE MURPHY Defendant

Hearing: On the Papers

Counsel:

J Wynyard for Plaintiff
T Grimwood for Defendant

Judgment:

22 August 2013

JUDGMENT (NO. 3) OF TOOGOOD J [COSTS]

This judgment was delivered by me on 22 August 2013 at 4:45 pm
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

MURPHY v MURPHY [2013] NZHC 2145 [22 August 2013]

Result

[1] This judgment concerns an application for costs against a legally-aided plaintiff1 or, alternatively, an order specifying the amount of costs which would have been ordered had the plaintiff not been in receipt of legal aid.2

[2] For the reasons given below, I decline to make an order for payment of costs, but fix the costs that would otherwise have been ordered at $37,810.

Background

[3] On 15 February 2013,3 I determined a property ownership dispute under the Property Law Act 2007 (“the PLA”) between a mother (the defendant) and son (the plaintiff), holding that the mother should become the sole registered proprietor of the property in dispute but that she should pay her son $13,500 by way of compensation under s 343(a) of the PLA. I requested the parties to file memoranda about the form of the orders to be made to give effect to the judgment and reserved the question of costs. I observed that, as the parties had each had a measure of success, it might be appropriate to let costs lie where they fell but gave leave for the filing of costs memoranda.

[4] After receiving further submissions from counsel, I issued a second judgment4 in which I made orders under s 343(g) of the PLA directing the parties to undertake the necessary conveyancing to give effect to the principal judgment.

[5] The defendant sought an award of costs against the plaintiff notwithstanding that the plaintiff had received legal aid to support his claim. I recorded in the second judgment that I had been informed by counsel for the defendant that a Calderbank offer was made to the plaintiff approximately a month prior to the commencement of the hearing “for a sum significantly greater than the plaintiff ’s final award”. I
reserved leave for counsel to make further submissions and in particular to address

1      Legal Services Act 2011, s 45(2).
2      Ibid, s 45(5).
3      Murphy v Murphy [2013] NZHC 217.
4      Murphy v Murphy [2013] NZHC 1151.

the Calderbank offer in the context of the criteria for establishing “exceptional circumstances” under s 45(2) of the Legal Services Act 2011 (“the Act”), including the examples given in s 45(3).

The legislative provisions

[6] Section 45(2) of the Act provides that an award of costs may be made against the defendant only if “the Court is satisfied that there are exceptional circumstances.” Section 45 of the Act provides, so far as is relevant:

45 Liability of aided person for costs

(1) If an aided person…

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 Murphy v Murphy

Details

AGLC: Murphy v Murphy [2013] NZHC 2145
Case: [2013] NZHC 2145
Decision Date: 22 August 2013

CaseChat Overview and Summary

The High Court of New Zealand considered an application for costs in a property dispute between Cheyne Dennis Murphy and Robyn Stephanie Murphy. The case involved a claim for compensation for property ownership, with the court finding in favor of the defendant and ordering her to compensate the plaintiff. The defendant sought costs against the plaintiff, who had received legal aid, arguing that the plaintiff's refusal to accept a Calderbank offer constituted exceptional circumstances under the Legal Services Act 2011. The court declined to order the plaintiff to pay costs but specified the amount that would have been ordered if the plaintiff had not been legally aided. The court found that while the plaintiff's counter-offer was significantly higher than the award, it was not unreasonable given the analysis and explanation provided. The court concluded that the plaintiff's conduct did not amount to exceptional circumstances and therefore did not justify an order for costs against him. However, the court made an order specifying that the defendant would have been awarded costs amounting to $37,810 had the plaintiff not been legally aided.

Orders