Salih v Almarzooqi

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA309/2022
[2024] NZCA 124

BETWEEN	RAFID MOHAMMED SALIH Appellant
AND	RAHLA HUSSEIN AMIN HARDER ALMARZOOQI Respondent

Court:	Courtney, Thomas and Collins JJ
Counsel:	P W Michalik and M V Smith for Appellant J L W Wass and M Freeman for Respondent
Judgment:	22 April 2024 at 9.30 am

JUDGMENT OF THE COURT (COSTS)

Costs are reserved until final disposition of the proceedings.
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REASONS OF THE COURT

(Given by Courtney J)

In the substantive judgment in this matter delivered on 14 December 2023 the Court declined to make any order as to costs on the basis that, although Mr Salih had been the successful party on the appeal and would normally be entitled to a costs order, the Court had understood that Ms Almarzooqi was legally aided. However, Ms Almarzooqi’s legal aid status was subsequently clarified in a memorandum from her counsel which explained that, while Ms Almarzooqi had been legally aided in the High Court she had not sought and was not granted legal aid for the appeal. As a result, the judgment was recalled and reissued with the decision as to costs being that the issue could be addressed by memoranda.[1]
[1]Salih v Almarzooqi [2023] NZCA 645, [2023] NZFLR 560 at [116].
Counsel for Mr Salih and Ms Almarzooqi filed separate memoranda on the issue of costs. Essentially, Mr Salih seeks to have costs paid on the basis of the Court’s initial indication that he should be treated as the successful party.
Ms Almarzooqi invites us to let costs lie where they fall or, alternatively, be reserved until the final disposition of the proceedings because:
(a)Although Ms Almarzooqi did not prevail at the appeal, she should not be treated as an unsuccessful party for costs purposes given that the case remains live following its remittal to the High Court and, further, that Mr Salih failed in relation to a number of arguments raised for the first time in this Court.
(b)The case has public interest and benefit beyond the parties.
(c)Ms Almarzooqi is eligible for legal aid and has been in receipt of legal aid throughout, save for: a point early in the proceeding (as a result of a representation made by Mr Salih’s counsel to the Legal Services Agency); the application for leave to appeal to the Supreme Court in respect of her unsuccessful summary judgment application, for which she was represented on a pro bono basis; and the current appeal, for which she was also represented on a pro bono basis. Her lack of legal aid in respect of the current appeal reflected the fact that neither of her counsel — Mr Freeman and Mr Wass — had permanent Court of Appeal or Supreme Court provider status for legal aid purposes. Nevertheless, Ms Almarzooqi continues to have a legal aid grant in the High Court.

Result

We are persuaded that the circumstances outlined in Ms Almarzooqi’s costs memorandum mean that it would not be appropriate to make a costs award at this point. We consider that costs should be reserved until final disposition of the proceedings and order accordingly.

Solicitors:
Michael Smith Barrister and Solicitor, Wellington for Appellant
Thomas Dewar Sziranyi Letts, Lower Hutt for Respondent

The Court of Appeal of New Zealand heard an appeal by Rafid Mohammed Salih against Rahla Hussein Amin Harder Almarzooqi. The case concerns an unresolved dispute between the parties, with the appeal focusing on the costs associated with the proceedings. The original decision, delivered on 12 December 2023, declined to make any order regarding costs, primarily because the Court understood that Ms Almarzooqi was legally aided. This understanding was later found to be incorrect as Ms Almarzooqi did not receive legal aid for the appeal. Consequently, the Court recalled and reissued the judgment, reserving the decision on costs until further clarification.

The legal issues before the Court included whether Mr Salih, as the successful party on appeal, should be granted costs and whether Ms Almarzooqi, despite not prevailing in the appeal, should be treated as an unsuccessful party for costs purposes. The Court also considered whether the case had public interest and benefit beyond the parties and Ms Almarzooqi's eligibility for legal aid throughout the proceedings. Mr Salih argued that he should receive costs based on the Court's initial indication. Ms Almarzooqi, on the other hand, suggested that costs should either lie where they fall or be reserved until the final disposition of the proceedings due to the case's ongoing status and Mr Salih's failure on several arguments raised for the first time during the appeal.

The Court concluded that given the circumstances outlined in Ms Almarzooqi's costs memorandum, it would not be appropriate to make a costs award at that point. The Court found that the case had public interest and benefit beyond the parties, and Ms Almarzooqi's lack of legal aid for the current appeal did not change her overall eligibility for legal aid throughout the proceedings. The Court thus decided that costs should be reserved until the final disposition of the proceedings.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established