Peeling v Jacobs

[2024] NZHC 632

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NOTE: NAMES OF THE PARTIES IN THIS MATTER HAVE BEEN ANONYMISED.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-000866

[2024] NZHC 632

BETWEEN

A PEELING

Appellant

AND

J JACOBS

First Respondent

F GORDON

Second Respondent

Hearing:	On the papers
Judgment:	21 March 2024

COSTS JUDGMENT OF WALKER J

This judgment was delivered by me on 21 March 2024 at 3 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

PEELING v JACOBS [2024] NZHC 632 [21 March 2024]

[1]                 Following issue of a judgment on 29 September 2023 dismissing the appeal, this Court made an order for 2B costs in favour of the first respondent against the appellant.1 Following that determination, the first respondent has filed a memorandum setting out the cost calculation on a 2B basis. The scale costs come to $24,736.50.2

[2]                 Counsel for the first respondent properly records that the first respondent is legally aided. Where a party is legally aided and costs are awarded in their favour, the approach is that the award of costs is the full sum of the legal aid grant, provided it is the same or less than the appropriate scale costs.3 This was confirmed by the Court of Appeal in Curtis v Commonwealth of Australia.4

[3]                 The first respondent has provided a letter from the Legal Services Commissioner recording that the full sum of the legal aid grant is $13,257.21. It follows that the costs payable by the appellant are therefore $13,257.21.

[4]                 The appellant has not responded to the costs memorandum other than to advise by email that she is unable to pay costs. She has not filed evidence to this effect nor otherwise provided documentary support.

[5]                 An inability to pay or afford costs is not a factor which automatically reduces the costs payable but may be considered in the Court’s discretion. The appellant has already benefitted from the first respondent’s grant of legal aid due to the indemnity principle. It must be borne in mind that a party in receipt of legal aid is subject to a condition that amounts are repayable to the Legal Services Commissioner in accordance with s 21 of the Legal Services Act 2011.

[6]                 In those circumstances, I make an order for costs against the appellant in the sum of $13,257.21.

............................................................

Walker J

1      Peeling v Jacobs [2023] NZHC 2733.

2      The cost memorandum refers to an amount of $23, 541.50 but this appears to be an arithmetical error.

3      Kumar v Heartland Bank Limited [2023] NZHC 824 at [6].

4      Curtis v Commonwealth of Australia [2019] NZCA 126 at [22].