Sila v Nanai-Leota
[2019] NZHC 2868
•5 November 2019
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2017-485-978
[2019] NZHC 2868
UNDER Part 8 of the High Court Rules 2016; Law Reform (Testamentary Promises) Act 1949 IN THE MATTER
of the estate of Faalepo Paul Sila
BETWEEN
SILIUA VAA SILA
Plaintiff
AND
UAITA NANAI-LEOTA
Defendant
On the papers: Counsel:
O Woodroffe for Plaintiff
B J J Sheehan and A S Cavanaugh for Defendant
Judgment:
5 November 2019
JUDGMENT OF CHURCHMAN J (COSTS)
Introduction
[1] Mr Faalepo Paul Siva (the deceased) died intestate in early 2017. The defendant, the deceased’s adopted son, was granted letters of administration in May 2017.
[2] The plaintiff bought proceedings on 21 November 2017 alleging that, during a visit to the deceased’s home in Nelson in 2015, he had promised to give her the whole of his estate and to leave sufficient funds to enable her to take his remains back to Samoa.
SILA v NANAI-LEOTA (COSTS) [2019] NZHC 2868 [5 November 2019]
[3] As the plaintiff is impecunious, the parties agreed on 8 August 2018 that she would deposit $10,000 in the High Court as security for costs. However, that payment was, for various reasons, not made, leading the defendant to file an application dated 9 November 2018 for security for costs.
[4]The following week, on 16 November 2018, the $10,000 was paid into Court.
[5] In determining that application for security for costs, it was found that only the plaintiff’s claim relating to repatriating the deceased’s remains had any prospect of success; there appeared to be no realistic legal basis upon which she could be said to have an interest in the deceased’s Nelson property.1 The Court, being satisfied that the plaintiff was impecunious and her claim weak, held that an order for security for costs was necessary, although it did not need to be an amount that would represent the actual likely costs of the hearing.2 In the circumstances, it was deemed appropriate that security be fixed at $10,000 and that amount already paid into Court be held as security for costs.3
[6] The proceedings were discontinued on 4 July 2019 and the defendant accordingly seeks costs on a 2B basis.
Relevant law
[7] Where a plaintiff discontinues a proceeding, he or she will generally be required to pay costs to the defendant unless the Court orders otherwise, although this presumption may be displaced when it is just and equitable to do so.4 Toogood J recently highlighted the following points which emerge from case law:5
(a) The reasonableness of the parties’ stances will be taken into account; whether it was reasonable for the plaintiff to bring and continue the proceeding and whether it was reasonable for the defendant to oppose it. It is not sufficient for the plaintiff to show merely that it had reasonable grounds to believe it would be the successful party.
1 Sila v Nanai-Leota [2018] NZHC 3163 at [51]-[52].
2 At [60] and [62].
3 At [63].
4 High Court Rules, r 15.23; Kroma Colour Prints Ltd v Tridonicatco NZ Ltd [2008] NZCA 150, (2008) 18 PRNZ 973 at [12].
5 Royal Forest and Bird Protection Society of New Zealand Inc v Northland Regional Council
[2019] NZHC 449 at [7].
(b) Conduct prior to the commencement of the proceedings may be relevant.
(c) The Court will not consider the merits of the respective cases unless they are so obvious that they should influence the costs outcome.
(d) The reason for discontinuing the proceeding may be relevant. For example, there may have been a change of circumstance rendering continuation of the proceeding unnecessary.
Discussion
[8] Counsel for the plaintiff, Ms Woodroffe, submits that any award of costs should be limited to the sum already paid into the Court as security for costs, it having been accepted by this Court that she is impecunious. She submits that, since the appointment of new counsel in March 2019, the plaintiff has sought to settle this matter, taking many steps to try and bring the defendant to have a face-to-face discussion to resolve the matter amicably. She alleges that he refused to meet, though, instead placing undue pressure on her to sign over a share she is alleged to hold in a property in Wainuiomata as a condition of settlement. In recognition of her willingness to solve this matter out of Court, and of her having taken these proceedings in reliance on her genuine belief in her cultural and traditional values, Ms Woodroffe submits that awarding any further costs against her would be tantamount to punishment.
[9] Counsel for the defendant, Mr Sheehan, submits that the defendant has been put to significant legal expense over the past two years as a result of the plaintiff bringing a meritless claim and pursuing it in a way that inevitably led to increased costs. He also says that the plaintiff has previously given evidence that she is not, in fact, impecunious. Mr Sheehan argues that there are aggravating factors that would weigh against overturning the presumption in favour of an award of costs being made, namely that the plaintiff has repeatedly failed to comply with timetabling directions and has failed to accept reasonable offers of settlement. If anything, these factors, it is submitted, would mean that an uplift is justified,6 and while such an uplift is not sought in this case, it is a relevant factor in considering whether the Court should
6 High Court Rules, r 14.6(3).
exercise its discretion to overrule the presumption set out in r 15.23 of the High Court Rules.
Analysis
[10] I am not persuaded that this is a case where it would be just and equitable that the presumption that the plaintiff, having discontinued the proceedings, should be required to pay costs to the defendant should be displaced. Rather than acting reasonably, the plaintiff seems to have acted opportunistically in bringing these proceedings.
[11] The Court, in its decision of 4 November 2018, assessed the merits of the claim and concluded that there was no legal basis for the claim that the plaintiff was entitled to the entire estate of the deceased and that the only one of the claims which had any prospect of success was the one relating to returning the deceased’s remains to Samoa.7
[12] The plaintiff’s failure to respond to settlement offers is not absolved by her more recent attempts, upon instructing new counsel, to enter into dialogue with the defendant. It is my view that, in the circumstances of this case, it is appropriate that 2B costs be awarded.
[13] As to her impecuniosity, when exercising the discretion to award costs, although financial hardship is a relevant factor which may be taken into account under r 14.7(g), it is not a complete answer to a claim for a costs award.8 In Te Whare o te Kaitiaki Ngahere Inc v West Coast Regional Council, it was held that:9
A costs award should be made at a meaningful level, even against an impecunious party, when that party has advanced a case which is poorly pleaded or lacking in merit…
[14] While it is said to be difficult for the defendant to accept that the plaintiff should not be ordered to pay costs as she is impecunious, particularly given her assertions to the contrary during the preceding security for costs hearing, the fact
7 Sila v Nanai-Leota [2018] NZHC 3163 at [51]-[52].
8 Craig v Keith [2017] NZHC 2664 at [23].
9 Te Whare o te Kaitiaki Ngahere Inc v West Coast Regional Council [2014] NZHC 2969 at [16].
remains that her only income is her superannuation. The money that she paid into the Court as security was apparently financed by loans raised by family members, as were the costs on the security for costs application, and hearing fees were waived in view of her inability to pay those fees. Taking her financial situation into account, it is my view that it is appropriate in this case that there be a reduction of 25 per cent in costs awarded against the plaintiff. This keeps the costs award at a meaningful level and also recognises that the defendant has been made to spend significant sums in legal fees defending her claim.
[15] In terms of the schedule of costs appended to the defendant’s submissions on costs, Ms Woodroffe objects to item 32 – defendant’s preparation of index of documents. She notes that the entry in the time allocation schedule of the High Court Rules is for “defendant’s preparation of list of issues, authorities, and common bundle”, which would suggest it anticipates something more than compiling an index of documents. Although the defendant is only claiming 0.3 of a day rather than two days, it is submitted that this aspect of the costs claim is misconceived. I accept this submission.
[16] The other item to which Ms Woodroffe objects is item 24 – preparing of submissions (on costs). This step comes under the heading of interlocutory applications and is intended for submissions on such applications rather than submissions on costs. Accordingly, I am not minded to allow costs on this step.
Result
[17] Costs and disbursements in the amount of $22,405.42 are awarded in favour of the defendant, as per the attached schedule.
[18] The $10,000 paid into the High Court for security for costs is to be released to the defendant, while the remaining sum owing of $12,405.42 is to be paid by the plaintiff.
Churchman J
Solicitors:
Woodroffe Lawyers, Auckland for Plaintiff ARL Lawyers, Lower Hutt for Defendant
Schedule of costs Scale costs: Schedule 2B – applicable daily rate is $2,230
| Step | Description | Days | Total |
| 2 | Commencement of defence | 2.0 | $4,460 |
| 10 | Preparation for first case management conference | 0.4 | $ 892 |
| 11 | Filing memorandum for first case management conference | 0.4 | $ 892 |
| 13 | Appearance at first case management conference | 0.3 | $ 669 |
| 20 | List of documents on discovery | 2.5 | $ 5,575 |
| 21 | Inspection of documents | 1.5 | $ 3,345 |
| 13 | Appearance at further case management conference (9 October 2018) | 0.3 | $ 669 |
| 9 | Pleading in response to amended pleading (amended statement of defence) | 0.6 | $ 1,338 |
| 12 | Appearance at Mentions Hearing on 19 November 2018 | 0.2 | $ 446 |
| 30 | Defendant’s preparation of briefs | 2.5 | $ 5,575 |
| 11 | Filing memoranda for subsequent case management conference on 4 February 2019 | 0.4 | $ 892 |
| 15 | Preparation for and appearance at pre-trial conference on 26 March 2019 | 0.5 | $ 1,115 |
| 11 | Filing memorandum dated 6 May 2019 in response to plaintiff’s further request for a judicial settlement conference | 0.4 | $ 892 |
| 11 | Filing memorandum dated 24 June 2019 in response to plaintiff’s non-compliance with timetabling directions, and filing further memorandum in response | 0.4 | $ 892 |
| Total costs | $27,652 | ||
| (reduction for impecuniosity of 25%) | x 0.75 = $20,739 | ||
| Disbursements | |||
| Filing statement of defence | $ 110 | ||
| Filing amended statement of defence | $ 110 | ||
| Sealing fee for subpoena | $ 50 | ||
| Expert witness fee – Sadat Muaiava | $ 1,200 | ||
| Process server fee | $ 196.42 | ||
| Total disbursements | $ 1,666.42 | ||
| Total costs and disbursements | $22,405.42 | ||
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