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 he would have no personal exposure if a s 45(5) order was made.

[6]      Against this background, the key issues I must determine are:

(a)       If Mr Rippey had not been legally aided, would a costs order against him have been appropriate?

(b)If so, what should the quantum of any order under s 45(5) of the Act be?

If Mr Rippey had not been legally aided, would a costs order against him have been appropriate?

[7]      Mr Rippey submitted that the appropriate course is for costs to lie where they fall.  An order under s 45(5) should not therefore be made because, even if he were not legally aided, he should not have been ordered to pay costs.   Mr Rippey acknowledged that the  general  principle is that  costs will follow the event,  but observed that it is not a mandatory requirement.  Rather, the “traditional”  practice in

family protection cases is for costs to be borne by the estate.2

[8]      Mr  Rippey  referred  to  Barker  v  Barker,  where Asher  J  noted  that  in  a defended family protection claim the Court will often order that costs lie where they fall.3   I note, however that on the particular facts of that case, Asher J considered that there was no basis for going beyond the general principles relating to costs and that

scale costs should be awarded to the successful party.4

2      Keelan v Peach [2003] NZFLR 727 (CA) at [7]

3      Barker v Barker HC Auckland CIV-2006-404-181, 7 December 2006.

4 At [20]. His Honour ultimately awarded scale costs for the Family Court proceedings, and ordered that costs were to lie where they fall in the High Court proceedings, as each party had successes and failures.

[9]      The siblings submitted that there is no ‘rule of thumb’ or requirement that costs will be met out of the estate with respect to family protection claims.5   In R v R [Costs] the Family Court Judge noted that where property matters are at the heart of the dispute and the interests of a child are not, the Court may approach the costs issue from a civil perspective.6    That principle was reiterated in Re Miller (costs), where Hansen J said “[p]arties who are sui juris and active contestants in family protection litigation generally should expect costs to follow the event”.7

[10]     The siblings noted that they have had to pay their own legal fees (which have not been met by the estate).  Further, the estate consists of a family farm and there is little or no cash available to meet legal expenses.

[11]     In my view, if Mr Rippey had not been legally aided, a costs award against him would have been appropriate, on a category 2B scale basis.  Mr Rippey’s appeal was unsuccessful and the Judge’s determination that Mrs Rippey had not breached her moral duty to him was upheld.  Mr Rippey is an adult, so these proceedings did not give rise to any issues regarding the interests of minors.   Rather, Mr Rippey unsuccessfully  sought  a  monetary  award  from  the  estate  of  his  late  mother. Mrs Rippey’s decision not to make provision for Mr Rippey in her will was upheld, however, as being in accordance with her moral duties.

[12]     The siblings have been put to considerable expense, firstly in defending the proceedings  in  the  Family  Court  and  subsequently  in  successfully  opposing Mr Rippey’s appeal in this Court.  There is little or no cash in Mrs Rippey’s estate to meet legal fees.  Rather, it comprises a farm which the siblings ideally wish to keep in the family for the benefit of future generations. As such, the costs of this litigation

will no doubt have been a significant burden on the siblings personally.

5      Lawler v New Zealand Guardian Trust Co Ltd HC Palmerston North AP10/02, 8 April 2003, at [87].

6      R v R [Costs] [2005] NZFLR 461 (FC) at 463-464.

7      Re Miller (costs) (2001) 20 FRNZ 459 (HC) at [6].

[13]     If Mr Rippey had not been legally aided I would have had no hesitation in concluding in these circumstances the usual principle that costs follow the event should  apply  and  that  an  award  of  costs  should  accordingly  be  made  against Mr Rippey.

What is the appropriate quantum for a s 45(5) order?

[14]     In my view, if s 45 of the Act did not apply, it would be appropriate for costs to be awarded on a category 2B scale basis.

[15]     I have carefully reviewed the schedule of category 2B costs annexed to the respondents’ memorandum of 25 September 2014.   I am satisfied  that the sum claimed ($10,884.90) is appropriate and in accordance with the High Court Rules.

Result

[16]     I make an order 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.

Katz J