Read v Almond - [2016] NZHC 464

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CIV-2014-404-002991

CIV-2014-404-001278 [2016] NZHC 464

BETWEEN
BRUCE JAMES READ

First Plaintiff

ETHNE GLADYS READ
Second Plaintiff

CHRISTOPHER JOHN READ
Third Plaintiff

AND

JANFERIE MAEVE ALMOND

Defendant

On the papers

Judgment:

17 March 2016

JUDGMENT AS TO COSTS OF THOMAS J

This judgment was delivered by me on 17 March 2016 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Solicitors:

Inder Lynch, Auckland Rice Craig, Papakura.
Law & Associates, Manukau.

READ v ALMOND [2016] NZHC 464 [17 March 2016]

Background

[1] By my decision of 11 November 2015,1 I indicated that the plaintiffs were entitled to costs.

[2] The parties have been unable to reach agreement. I have received and considered a number of memoranda from the parties.

[3] The defendant is in receipt of legal aid. The plaintiffs submit that a costs order should be made against the defendant as there are exceptional circumstances falling within the meaning of s 45(2) of the Legal Services Act 2011 (the Act).

Relevant law

[4] Under s 45(1) of the Act, the liability of a legally aided person, under an order for costs, must not exceed a reasonable amount for that person to pay. That is to be determined having regard to all the circumstances, including the means of all the parties and their conduct in connection with the dispute.

[5] Under s 45(2), no order for costs may be made against an aided person in a civil proceeding unless the court is satisfied that there are exceptional circumstances. The exceptional circumstances are listed under s 45(3) as including but not limited to the following conduct by the aided person:

(a) any conduct that causes the other party to incur unnecessary cost:

(b) any failure to comply with the procedural rules and orders of the court:

(c) any misleading or deceitful conduct:

(d) any unreasonable pursuit of 1 or more issues on which the aided person fails:

(e) any unreasonable refusal to negotiate a settlement or participate in alternative dispute resolution:

(f) any other conduct that abuses the processes of the court.

1 Read v Almond [2015] NZHC 2797.

[6] Section 45(3) provides that any order for costs made against the aided person must specify the amount that the person would have been ordered to pay if this section had not affected that person’s liability.

[7]The relevant authorities state the following principles:

(a)The onus is on the applicant to establish entitlement to costs.2

(b)The threshold must involve “unusual and/or clearly out of the ordinary circumstances”.3

(c)The circumstances must relate to the conduct of the proceedings as opposed to the events that led to it.4

(d)The assets and income of the aided person is a circumstance relevant to a decision on what is reasonable for an aided person to pay on an order for costs.5

(e)Whether there are “exceptional circumstances” needs to be determined on a case by case basis, whether or not those involve disapprobation.6

[8]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Read v Almond

Details

AGLC: Read v Almond [2016] NZHC 464
Case: [2016] NZHC 464
Decision Date: 17 March 2016

CaseChat Overview and Summary

The case of Read v Almond involved a dispute between the plaintiffs, Bruce James Read, Ethne Gladys Read, and Christopher John Read, and the defendant, Janferie Maeve Almond. The plaintiffs sought a costs order against the defendant, arguing that there were exceptional circumstances justifying such an order under section 45 of the Legal Services Act 2011. The plaintiffs submitted that the defendant's conduct during the proceedings, including failure to comply with court orders, misleading conduct, and unreasonable pursuit of issues, warranted an award of costs. The defendant, on the other hand, argued that there were no exceptional circumstances and that any award of costs would be unreasonable given her financial situation.

The court considered the legal principles applicable to the case, including the onus on the applicant to establish entitlement to costs, the need for unusual and/or clearly out of the ordinary circumstances, and the relevance of the assets and income of the aided person. The court also noted the principles set out in relevant authorities, including the situations properly classified as "exceptional circumstances."

After considering the submissions from both parties, the court found that while there had been some failure by the defendant to comply with court directions and timetable orders, this was not of the requisite standard to warrant increased costs. The court also found that the defendant's version of events was not convincing and that many of the factors relied upon by the plaintiffs were implicit in the final result. The court further considered the means of the parties and concluded that any award of costs would have been minimal.

In conclusion, the court found that there were no exceptional circumstances justifying an award of costs against the defendant. The court therefore made no award of costs.

Orders