Sen v Public Trust

[2021] NZHC 2416

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2019-442-48

[2021] NZHC 2416

BETWEEN

LATIKA DEVI SEN

Applicant

AND

PUBLIC TRUST as trustee and executor of the Estate of Colin Russell Friend Respondent

MICHAEL ALLAN FRIEND and JUDITH LEIGH FRIEND

Interested Parties

Hearing:

On the Papers

Appearances:

L S B Acland for applicant

No appearance by or for respondent B J Bellamy for interested parties

Judgment:

14 September 2021

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[Costs]

[1]    In my judgment dated 21 July 2021 I upheld the plaintiff’s challenge to a claim to privilege in respect of certain documentation by the interested parties in the context of discovery. I concluded by determining that the plaintiff was entitled to her costs in relation to this interlocutory application on a 2B basis, notwithstanding that it had turned out that there was only one substantive document involved. The view I expressed was that if the plaintiff’s challenge had been handled differently by the interested parties the application would have been unnecessary.

SEN v PUBLIC TRUST [2021] NZHC 2416 [14 September 2021]

[2]    The applicant now seeks costs. On her behalf, Mr Acland calculates costs on a 2B basis at $7,648 but informs the Court that her actual costs are only $4,643.59. Of course, the plaintiff can claim no more than the latter figure.

[3]    For the interested parties, Mr Bellamy does not dispute the costs figure. The only issue he raises is whether the costs award should be made at this stage. He notes that the plaintiff is legally aided and that she is not therefore exposed to costs orders (which is true, except in the most extreme cases). He says — quite rightly — that the litigation still has “a number of phases to run through”. There is currently an outstanding interlocutory matter and there may well be other issues that arise before the hearing in late May 2022. The essential point Mr Bellamy emphasises is that because the applicant is legally aided she is not exposed in the same way as the interested parties are to costs awards and that interlocutory awards in her favour may ultimately operate unfairly if she were to be successful at trial.

[4]    As I see it that is simply a consequence of the legal aid regime, and the Court must nevertheless apply the usual rules which are that costs on interlocutory steps are dealt with at the time rather than becoming costs in the cause which is effectively what Mr Bellamy contends for.

[5]    Accordingly, the view I take is that there are no exceptional circumstances which would take this case outside of the scope of the usual rules.

[6]    On that basis, I make a costs award in favour of the plaintiff against the interested parties in the sum of $4,643.59.

Associate Judge Johnston

Solicitors:

Rout Milner Fitchett, Nelson for applicant Public Trust, Christchurch for defendant Stallard Law Ltd, Nelson for interested parties