Perkins v Purea

[2010] NZCA 272

IN THE COURT OF APPEAL OF NEW ZEALAND

CA365/2008
[2010] NZCA 272

BETWEENALAN STANLEY PERKINS AND ADRIENNE ROSEMARY PERKINS
Appellants

ANDTERE MOANA PUREA
First Respondent

ANDTOM TANGI-TUAKE AND JUNE TANGI-TUAKE
Second Respondents

Court:William Young P, Chambers and Ellen France JJ

Counsel:N W Woods for Appellants
D G Smith for First Respondent
W G C Templeton and P J Stevenson for Second Respondents

Judgment:25 June 2010 at 3 pm

JUDGMENT OF THE COURT

The appellants must pay to the second respondents, by way of costs of disbursements in this Court, the sum of $6,950.40. 

REASONS OF THE COURT

(Given by Chambers J)

[1]       On 18 November last year, we delivered our decision on the substantive appeal.[1]  We gave an indication as to how we considered costs should fall in the hope that the parties would be able to resolve costs among themselves.[2]  Unfortunately they have not been able to. 

[1]     Perkins v Purea [2009] NZCA 541.

[2]     At [124]-[126]. 

[2]       Tere Purea, the first respondent, was legally aided.  According to his counsel, Mr Smith, he has no assets.  His only source of income is national superannuation.  No order for costs against him is appropriate: there are no “exceptional circumstances”.[3] 

[3]     Legal Services Act 2000, s 40(2).

[3]       Tom and June Tangi-Tuake, the second respondents, have sought costs against Allan and Adrienne Perkins, the appellants, in the sum of $13,593.40.  We award $6,950.40.  We now explain why we have disallowed certain claims. 

[4]       First, we have disallowed a claim for “preparation of case on appeal” ($1,600).  Mr Woods, as the Perkins’ lawyer, prepared the case on appeal.  Ms Stevenson, junior counsel for the Tangi-Tuakes, prepared a fourth volume of the case (in respect of which this claim was made).  Mr Woods explains, however, that the need for the fourth volume arose because the Tangi-Tuakes’ lawyers did not advise him within the time specified in the Court of Appeal (Civil) Rules 2005 as to additional documents they wished to have included in the case on appeal.  Accordingly, the cost of preparing the fourth volume arose from the Tangi-Tuakes’ lawyers’ non-compliance.  In those circumstances, we do not consider the Perkins should have to pay the cost of preparing the fourth volume. 

[5]       Secondly, we have disallowed the claim for second counsel.  Neither the Perkins nor Mr Purea had second counsel.  Of course, second counsel are always desirable.  But in the circumstances of this case it is unfair that the Perkins should have to bear the cost of the Tangi-Tuakes’ election to have two counsel.  This decision strips $4,413 from the claim. 

[6]       Thirdly, we have deducted from Mr Templeton’s disbursements $70.  He claimed for two nights’ accommodation; only one should be charged to the Perkins. 

[7]       Fourthly, we have disallowed the disbursement for services by a legal researcher, who apparently researched “relevant law for Court of Appeal hearing”.  The cost of research is built into the allowance for preparation.  That removes $560 from the total. 

[8]       These reductions pick up most of Mr Woods’s objections to the claim.  We record, however, that, contrary to his submission, we do not consider the award should be adjusted on the basis that some time was spent on Mr Purea’s unsuccessful cross-appeal.  The issues raised in the appeal and cross-appeal were very much intertwined. 

[9]       Mr Woods further submitted it was unfair that the Perkins had to meet all the Tangi-Tuakes’ costs in circumstances where the Perkins were innocent parties and Mr Purea was the author of the wrongdoing.  We do not accept that submission.  Clearly, had Mr Purea not been legally-aided, he would have had to contribute to the costs order.  But, even then, the liability of the Perkins and Mr Purea would have been for the total amount on a joint and several liability basis.  Given Mr Purea’s financial circumstances, the Perkins would have been paying the lot in any event. 

Solicitors:
Rice Craig, Papakura, for Appellants
Frost & Sutcliffe, Auckland, for First Respondent
Sellar Bone & Partners, Auckland, for Second Respondents