Peeling v Jacobs

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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].

CaseChat Overview and Summary

The appeal before the High Court of New Zealand, Auckland registry, involves A Peeling as the appellant and J Jacobs as the first respondent, with F Gordon as the second respondent. The matter arose from an earlier judgment dated 29 September 2023, where the appeal was dismissed. The court subsequently ordered costs in favour of the first respondent under Rule 2B. The first respondent, who is legally aided, filed a memorandum detailing the calculation of the scale costs, which amounted to $24,736.50. The first respondent provided documentation from the Legal Services Commissioner, showing that the full sum of the legal aid grant was $13,257.21. The court determined that the costs payable by the appellant would be limited to the legal aid grant amount, as per the ruling in Curtis v Commonwealth of Australia.

The primary legal issue before the court was whether the costs awarded should be limited to the amount of the legal aid grant, given that the first respondent is legally aided. The court referenced the principle established in Curtis v Commonwealth of Australia, confirming that when a party is legally aided and costs are awarded in their favour, the costs awarded should be the full sum of the legal aid grant if it is less than or equal to the scale costs. The court concluded that the costs payable by the appellant should be $13,257.21, which is the full sum of the legal aid grant. The appellant did not respond to the costs memorandum except to state her inability to pay, without providing any supporting evidence.

In making its determination, the court noted that while the appellant's inability to pay costs may be a relevant factor, it did not automatically reduce the amount of costs payable. The appellant had already benefitted from the first respondent’s legal aid due to the indemnity principle, and the condition of repaying legal aid amounts to the Legal Services Commissioner was also considered. The court ordered that the appellant pay costs of $13,257.21.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established