Ngata Tama Custodian Trustee Limited v Phillips

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)

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.
This last-mentioned fact was not referred to in the judgment.
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).
Plainly, an order for an award of costs is not to be made without the enquiry required by section 45.
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).
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

CaseChat Overview and Summary

Ngati Tama Custodian Trustee Limited sought to appeal a costs order made against David William Phillips in a previous decision. The matter was heard by the Court of Appeal of New Zealand, with Williams, Peters and Gendall JJ presiding. The appellant's counsel was D M Hughes and L A Player-Bishop, while the respondent was represented by P M Webb and A C McCormick. The judgment was delivered on 2 March 2020.

The legal issue before the Court was whether the appellant could be awarded costs against the respondent, who was legally aided in the appeal. The Court recalled a previous costs order made in the substantive judgment and sought submissions from the parties regarding any exceptional circumstances that may justify the award of costs. The Court noted that an order for an award of costs is not to be made without the necessary enquiry required by section 45 of the Legal Services Act 2011.

The Court recalled the previous costs order and sought submissions from the parties as to whether, and if so to what extent, any exceptional circumstances justify an award of costs in this case. The Court did not consider it necessary to address the question of substantiating documentation at that stage. The appellant was given 10 working days to file any submissions, and the respondent had 10 further working days to respond.

The Court made no final orders in this judgment, but instead sought further submissions from the parties to determine whether exceptional circumstances justified an award of costs against the respondent. The parties were given specific timelines to file and respond to the submissions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established