Smyth v Wadland - [2009] NZCA 189

IN THE COURT OF APPEAL OF NEW ZEALAND
CA398/2007
[2009] NZCA 189
BETWEENLEE SMYTH

Appellant

ANDROYSTON WILLIAM WADLAND

Respondent

Court:Arnold, Potter and Harrison JJ
Counsel:J D Noble for Appellant

M K Macnab for Respondent

Judgment:18 May 2009 at 10.30 am

JUDGMENT OF THE COURT : COSTS

Had the appellant not been legally aided we would have awarded costs against him for a standard appeal on a band A basis, plus usual disbursements. As he was legally aided, we order him to pay $500 by way of costs to the respondent.
REASONS OF THE COURT
(Given by Arnold J)
Introduction
[1] In our substantive decision on this appeal, we allowed for the possibility that the respondent might wish to argue that there are exceptional circumstances in this case sufficient to justify an award of costs against the appellant even though he was legally aided: [2008] NZCA 578 at [55].
[2] The respondent’s counsel, Ms Macnab, has filed a memorandum seeking an award of costs against the appellant. The appellant opposes that application.
Background
[3] The relevant statutory provisions are ss 40 and 41 of the Legal Services Act 2000. They provide:
40Liability of aided persons for costs
(1)If an aided person receives legal aid for civil proceedings, that person’s liability under an order for costs made against him or her with respect to the proceedings must not exceed an amount (if any) that is reasonable for the aided person to pay having regard to all the circumstances, including the means of all the parties and their conduct in connection with the dispute.
(2)No order for costs may be made against an aided person in a civil proceeding unless the court is satisfied that there are exceptional circumstances.
(3)In determining whether there are exceptional circumstances under subsection (2), the court may take account of, but is not limited to, the following conduct by the aided person:
(a)any conduct that causes the other party to incur unnecessary cost:
(b)any failure to comply with the procedural rules and orders of the court:
(c)any misleading or deceitful conduct:
(d)any unreasonable pursuit of 1 or more issues on which the aided person fails:
(e)any unreasonable refusal to negotiate a settlement or participate in alternative dispute resolution:
(f)any other conduct that abuses the processes of the court.

(4)Any order for costs made against the aided person must specify the amount that the person would have been ordered to pay if this section had not affected that person’s liability.
(5)If, because of this section, no order for costs is made against the aided person, an order may be made specifying what order for costs would have been made against that person with respect to the proceedings if this section had not affected that person’s liability.
(6)If an order for costs is made against a next friend or guardian ad litem of an aided person who is a minor or is mentally disordered, then–
(a)that next friend or guardian ad litem has the benefit of this section; and
(b)the…

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 Smyth v Wadland

Details

AGLC: Smyth v Wadland [2009] NZCA 189
Case: [2009] NZCA 189
Decision Date: 18 May 2009

CaseChat Overview and Summary

The case of Smyth v Wadland involved an appeal by the appellant, Lee Smyth, against a decision made by the District Court. The appeal was contested by the respondent, Royston William Wadland. The Court of Appeal was tasked with determining whether there were exceptional circumstances that warranted an award of costs against the appellant, despite his receipt of legal aid. The appellant had argued against the award of costs, while the respondent sought an order for costs against the appellant, citing exceptional circumstances.

The court had to decide whether there were exceptional circumstances under section 40(2) of the Legal Services Act 2000 that would justify an award of costs against the appellant. The court also needed to determine the appropriate amount of costs to be awarded, considering the appellant's means and the exceptional circumstances identified.

The court found that there were indeed exceptional circumstances in this case, as the appeal was wholly without merit and had caused the respondent to incur unnecessary costs. The appellant's conduct during the litigation and the appeal was reprehensible, and the appeal was based on factual findings that could not sensibly be contested. The court ordered the appellant to pay $500 in costs, considering his limited means. The court also noted that the respondent could apply to the Legal Services Agency for payment of the difference between the ordered costs and the amount that would have been awarded had the appellant not been legally aided.

The court ordered the appellant to pay $500 in costs to the respondent. The court acknowledged that the appeal was wholly without merit and that the appellant's conduct was reprehensible. The court considered the appellant's limited means in determining the amount of costs to be awarded.

Orders