Rippey v Hunt - [2014] NZHC 2900

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2013-419-752 [2014] NZHC 2900

UNDER the Family Protection Act 1955

IN THE MATTER

of an appeal against a decision of the
Family Court at Hamilton

BETWEEN

PAUL PIAHANA RIPPEY

Appellant

AND

PAMELA ANITA HUNT,

VALARIE ELAINE MAISEY AND VIRGINIA ANNE HETA

Respondents

Hearing: On the papers

Counsel

A M Cook for Appellant
R H K Jerram for Respondents

Judgment:

20 November 2014

JUDGMENT OF KATZ J (Costs)

This judgment was delivered by me on 20 November 2014 at 4:30 pm
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: O’Sheas Solicitors, Hamilton
Anglesea Chambers, Hamilton

RIPPEY v HUNT, MAISEY AND HETA [2014] NZHC 2900 [20 November 2014]

Introduction

[1] The appellant, Paul Rippey, filed proceedings in the Family Court challenging his mother’s will, pursuant to the Family Protection Act 1955 (“Act”). Mr Rippey claimed that his mother had breached her moral duty to him by not making testamentary provision for him. Judge Riddell, in the Family Court at Hamilton, concluded that Mrs Rippey had not breached her moral duty to her son. Rather, her moral duty had been discharged by gifts and other support she had provided during her lifetime.

[2] Mr Rippey appealed that decision to this Court. I found that although some relatively minor errors had been made by the Family Court Judge, she had not erred in her key conclusion that Mrs Rippey had not breached her moral duty to her son by failing to make provision for him in her will.1 Mr Rippey’s appeal therefore failed. I reserved leave for memoranda to be filed in relation to costs.

[3] As Mr Rippey was in receipt of legal aid, the respondents (who are Mr Rippey’s siblings) are prevented by s 45(2) of the Legal Services Act 2011 (“Act”) from obtaining a costs order against Mr Rippey personally, unless there are exceptional circumstances. The siblings accept that there are no relevant exceptional circumstances in this case. They therefore seek an order pursuant to s 45(5) of the Act specifying what costs award would have been made in their favour, if the Act did not prevent costs being awarded against Mr Rippey.

[4] If I make such an order then the siblings will be able to apply to the Legal Services Commissioner under s 46 of the Act for payment of all or some of the amount I specify in the s 45(5) order. Mr Rippey would have no liability to pay that sum, as s 46(6) of the Act precludes the Commissioner from seeking to recover it
from him.

1 Rippey v Hunt [2014] NZHC 1694.

[5] Despite the fact that Mr Rippey has no downstream liability in respect of a s 45(5) order, he strenuously opposed the making of such an order. He submitted that the appropriate course is for costs to lie where they fall. Although it is not entirely clear, it appears from Mr Rippey’s submissions that he may not have fully appreciated that…

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 Rippey v Hunt

Details

AGLC: Rippey v Hunt [2014] NZHC 2900
Case: [2014] NZHC 2900
Decision Date: 20 November 2014

CaseChat Overview and Summary

The case of Rippey v Hunt involved an appeal by Paul Rippey against a decision of the Family Court at Hamilton, which had ruled that his mother had not breached her moral duty to him by not making testamentary provision for him in her will. The Family Court had determined that the moral duty had been discharged by gifts and other support provided during his mother's lifetime. The appeal was heard by Katz J in the High Court of New Zealand at Hamilton.

The central legal issues that Katz J had to address were whether, if the appellant had not been legally aided, a costs order against him would have been appropriate, and if so, what the quantum of any such order should be. Katz J considered that if the appellant had not been legally aided, a costs order against him would have been appropriate on a category 2B scale basis. This was because the appeal was unsuccessful, and the siblings had borne significant expenses in defending the proceedings in the Family Court and opposing the appeal in the High Court. The estate consisted of a family farm with little or no cash available to meet legal expenses, imposing a significant burden on the siblings personally.

Katz J determined that an order under s 45(5) of the Legal Services Act 2011 should be made specifying that a costs award of $10,884.90 would have been made against Mr Rippey with respect to this appeal if s 45(2) of the Act had not prevented such an order. This would allow the siblings to apply to the Legal Services Commissioner for payment of all or some of the specified amount, with Mr Rippey having no liability to pay that sum due to s 46(6) of the Act.

The final orders made by Katz J were that the appeal was dismissed and an order was made under s 45(5) of the Legal Services Act 2011 specifying that a costs award of $10,884.90 would have been made against Mr Rippey with respect to this appeal if s 45(2) of the Act had not prevented such an order.

Orders