Pillay v Family Court

Mark Pillay filed a judicial review in the High Court of New Zealand, Auckland Registry, challenging a decision of the Family Court. The proceedings were stayed to allow a related appeal to be heard first. The scope of the review was expanded to include Patrick Kannemeyer, the former Lawyer for the Child, and the Ministry of Business, Innovation and Enterprise (MBIE). Both respondents objected to being joined into the proceedings. Despite directions from the Court to amend the statement of claim, Pillay failed to file an amended pleading. The Court, therefore, struck out Pillay’s claims against Kannemeyer and MBIE. Both respondents then sought costs against Pillay.

The Court considered whether costs should be awarded given Pillay's claim of impecuniosity. The Court acknowledged that costs ordinarily follow the event, and since Pillay's claims were struck out, both Kannemeyer and MBIE were the successful parties. The Court also noted that while the Court may decline to award costs where the party liable to pay is impecunious, financial hardship alone is typically not sufficient to avoid a claim for costs. The Court held that Pillay's financial position did not warrant a reduction in the costs awarded to Kannemeyer and MBIE. The Court found that the amount of costs claimed by Kannemeyer and MBIE was reasonable and should be awarded to them.

The Court ordered Pillay to pay costs to Kannemeyer in the sum of $6,931 and to MBIE in the sum of $3,585. The Court emphasised that costs should be set at a meaningful level, and a reduction due to impecuniosity would be inconsistent with this principle. The Court also noted that Pillay's failure to comply with Court orders may have justified an application for increased costs, but this was not pursued by Kannemeyer and MBIE.