Ngata Tama Custodian Trustee Limited v Phillips

[2020] NZCA 34

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA160/2018
 [2020] NZCA 34

BETWEEN	NGATI TAMA CUSTODIAN TRUSTEE LIMITED Appellant
AND	DAVID WILLIAM PHILLIPS Respondent

Hearing:	26 November 2018
Court:	Williams, Peters and Gendall JJ
Counsel:	D M Hughes and L A Player-Bishop for Appellant P M Webb and A C McCormick for Respondent
Judgment:	2 March 2020 at 4.00 pm

JUDGMENT OF THE COURT

Order C and paragraph [76] of the judgment at [2019] NZCA 647 are recalled. The parties are to file submissions in accordance with paragraphs [5]–[6] of this judgment.

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REASONS OF THE COURT

(Given by Williams J)

1. In the judgment of this Court of 13 December 2019, we made a costs order against the respondent in terms of cl 4.1 of the settlement deed.[1]  The appellant duly provided a schedule of costs which totalled the rather impressive sum of $371,436.71 (including GST).  The respondent filed a memorandum on 29 January 2020 seeking two things:

   (a)documentation substantiating the costs quantum; and

   (b)to remind the court that in fact the respondent was legally aided in the appeal.

   [1]Ngati Tama Custodian Trustee Ltd v Phillips [2019] NZCA 647.

2. This last-mentioned fact was not referred to in the judgment. 

3. Section 45(2) of the Legal Services Act 2011 provides that “[n]o order for costs may be made against an aided person in a civil proceeding unless the court is satisfied that there are exceptional circumstances”.  “Exceptional circumstances” are further particularised in the inclusive list contained in subs (3).

4. Plainly, an order for an award of costs is not to be made without the enquiry required by section 45.

5. We therefore recall this Court’s costs award made in the substantive judgment.[2]  We seek submissions from the parties as to whether, and if so to what extent, any exceptional circumstances justify an award of costs in this case.  It is unnecessary to further address the question of substantiating documentation at this stage.

   [2]See Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC).

6. The appellant may file any submissions within 10 working days of this judgment.  The respondent may respond within 10 further working days.

Solicitors:
Anthony Harper, Auckland for Appellant
Denham Bramwell, Auckland for Respondent