Stills v McCormack
[2023] NZHC 3200
•14 November 2022
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2022-409-421
[2023] NZHC 3200
BETWEEN ANDREW EDWARD STILLS
Applicant
AND
ROBERT JAMES LOUIS McCORMACK and ELIZABETH ROBYN McCORMACK
Respondents
Hearing: On the papers Counsel:
Applicant in person
H A Evans and G C Collinson for Respondents
Judgment:
14 November 2022
JUDGMENT OF ASSOCIATE JUDGE PAULSEN
(Costs)
This judgment was delivered by me on 14 November 2023 at 10.30 am pursuant to rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
STILLS v McCORMACK [2023] NZHC 3200 [14 November 2022]
[1] In a judgment of 17 August 2023, I dismissed an application by the applicant (Mr Stills) to sustain a caveat he lodged over a property at Little Akaloa which had been purchased by the respondents (the McCormacks).1 I reserved costs on the basis that if either party sought costs they could apply by memorandum.
[2] Memoranda were filed, with the McCormacks seeking, and Mr Stills opposing, costs.
[3] I sought further submissions concerning Mr Stills’ grant of legal aid and the effect that might have upon his liability for costs, which were received.
[4] The background to the dispute between the parties is set out in my earlier judgment. I do not need to repeat it here. However, it is important to note that Mr Stills commenced this proceeding in September 2022 and was self-represented. He engaged counsel for a brief period in February 2023,2 but then continued to represent himself. Then, on 22 May 2023, he was granted legal aid and was represented by counsel from that date until the conclusion of the hearing on 19 June 2023. He is now once again representing himself.
The McCormacks’ position on costs
[5] The McCormacks seek costs against Mr Stills on a 2B basis with a 50 per cent uplift because they were the successful parties. However, they only seek costs for steps taken in the proceeding prior to the date Mr Stills applied for legal aid, being 17 May 2023. They submit Mr Stills’ grant of legal aid does not provide him with immunity from costs for steps prior to that date. They do not allege that exceptional circumstances exist for making an order for costs against Mr Stills for steps after 17 May 2023.3
[6] The McCormacks say Mr Stills should pay increased costs because he unnecessarily contributed to the time or expense of the proceeding by:
1 Stills v McCormack [2023] NZHC 2224.
2 Mr Grant Cameron from GCA Lawyers filed a notice that he was acting for Mr Stills on 7 February 2023 and appeared at one case management conference on 8 February 2023 but then had no further involvement in the proceeding.
3 Legal Services Act 2011, s 45(2).
(a)taking or pursuing an unnecessary step, or pursuing an argument that lacks merit;4
(b)failing, without reasonable justification, to accept a legal argument;5 and
(c)some other reason exists that justifies the Court making an order for increased costs.6
[7]Specifically, they say Mr Stills:
(a)made applications to restrain counsel, Mr Evans, and his instructing solicitors, Young Hunter, from acting in this proceeding, and for discovery of documents when these were unnecessary and meritless, serving only to delay the hearing;
(b)sought adjournments, including so that he could engage counsel, and then argued the interlocutory applications himself anyway;
(c)sought leave to file further affidavits (which contained substantially hearsay evidence) out of time shortly before the hearing of the substantive application, resulting in additional costs for the McCormacks in having to respond to that evidence; and
(d)made baseless allegations of fraud against the McCormacks, (and, I note, the McCormacks’ lawyers and Church Property Trustees (CPT)).
Mr Stills’ position on costs
[8] Mr Stills opposes any order for costs being made in the McCormacks’ favour. He argues that the principle underlying legal aid is that a litigant who is unable to pay their own legal costs and who is granted legal aid should ordinarily be excused from
4 High Court Rules 2016, r 14.6(3)(b)(ii)
5 Rule 14.6(3)(b)(iii).
6 Rule 14.6(3)(d).
paying the costs of the other party.7 He submits the protection from liability for costs applies to steps taken after the grant of legal aid and also retrospectively in respect to steps taken before a grant of legal aid is made, at least where no costs determination had been made at the time of the grant.8
[9] In addition, Mr Stills argues, relying upon s 45(1) of the Legal Services Act 2011 (the Act), that before awarding costs against a legally aided person the Court must have regard to all the circumstances, including the means of all the parties and their conduct in connection with the dispute. He says no order for costs should be made as the McCormacks and their lawyers have always been aware he had limited means and lacked knowledge and experience of the legal system and used that against him.
[10] Mr Stills’ memoranda contain lengthy justifications for both lodging his caveat and applying to sustain it, including allegations of fraudulent behaviour by the McCormacks, their lawyers and CPT staff. He made the same allegations in the affidavits filed in the proceeding but did not ultimately rely upon those matters at the hearing. He says his lawyer refused instructions to raise certain arguments and submit important evidence at the hearing which he believes caused him to lose his case.
[11] In relation to the unsuccessful interlocutory applications he made for discovery and for an order that the McCormacks’ lawyers cease to act, Mr Stills argues the applications were justified.9 He also says that as the McCormacks were unsuccessful in an application for security for costs that should cancel out his costs liability (in full or part) in respect of his unsuccessful applications.
[12] Mr Stills also says he did not have the means to engage lawyers, had run the case as best he could and certainly did not intend or want to take more steps than were required. He submits he had health issues and adjournments were necessary for that reason in circumstances where he did not have lawyers to represent him.
7 Relying on AA v LA [2017] NZHC 646 at [19].
8 Relying on Gitmans v Alexander (2003) 16 PRNZ 653 (HC) at [13].
9 Stills v McCormack [2023] NZHC 702.
[13] He submits he should not be penalised by a costs award, particularly in circumstances where he insists that he does have a caveatable interest in the land which would have been sustained had his case been presented as he instructed.
[14] Finally, he says if any costs are to be awarded they should be on a 2A basis because the matter should not have been difficult for the McCormacks’ lawyers who, he says, were using their substantial means and the justice system to get what they want regardless of the cost.
Costs principles
[15] All matters of costs are discretionary,10 but the discretion must be exercised on a principled basis and having regard to the relevant provisions of the High Court Rules 2016.11 The determination of costs, so far as possible, should be both predictable and expeditious.12 The party that has lost should pay the costs of the party that has won unless there are exceptional reasons to the contrary.13
[16] The amount of an award of costs is usually determined by an appropriate daily recovery rate applied to the time considered reasonable for each step reasonably required in relation to a proceeding or interlocutory application. The applicable daily recovery rate depends upon the nature of the proceeding. This is a category 2 proceeding, being a proceeding of average complexity in the High Court.14 Time allocations for steps in any proceeding or interlocutory application are set out in sch 3 of the High Court Rules.
[17] The Court may make an order for increased costs in the circumstances set out in r 14.6, which relevantly provides:
14.6 Increased costs and indemnity costs
(1)Despite rules 14.2 to 14.5, the court may make an order—
10 High Court Rules, r 14.1(1).
11 Part 14.
12 Rule 14.2(1)(g).
13 Rule 14.2(1)(a); and Shirley v Wairarapa District Health Board [2006] NZSC 63, [2006] 3 NZLR 523 at [19].
14 Rule 14.3.
(a)increasing costs otherwise payable under those rules (increased costs); or
…
(2)The court may make the order at any stage of a proceeding and in relation to any step in it.
The court may order a party to pay increased costs if—
…
(b)the party opposing costs has contributed unnecessarily to the time or expense of the proceeding or step in it by—
…
(ii)taking or pursuing an unnecessary step or an argument that lacks merit; or
(iii)failing, without reasonable justification, to admit facts, evidence, documents, or accept a legal argument; or
…
(d) some other reason exists which justifies the court making an order for increased costs despite the principle that the determination of costs should be predictable and expeditious.
The position in respect to legal aid
[18] Section 45 of the Act is concerned with an aided person’s liability for costs. Subsections (1) and (2) of that section provide:
(1)If an aided person received 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.
The term “aided person” is defined in s 4(1) of the Act as:
aided person—
(a)means a person who is granted legal aid under this Act or the former Act; and
(b)includes—
(i)a person who is granted legal aid on an interim basis:
(ii)a person whose grant of legal aid has been withdrawn under section 30[.]
[20] There is authority for the position taken by the McCormacks that the immunity from costs under s 45(2) (and its predecessor, s 40(2) of the Legal Services Act 2000) does not apply before a person is granted legal aid.15 This is the view the authors of McGechan on Procedure take when they say:16
Section 45 applies to an “aided person” as defined in s 4. Thus, s 45 does not apply before a person is granted legal aid, or after the grant terminates: Carter v Western Viaduct Marine Ltd (2003) 16 PRNZ 1034 (HC); Curtis v Gibson [2014] NZHC 969 at [17]–[18]. The inclusion, in the s 4 definition of “aided person”, of a person whose grant of legal aid has been withdrawn under s 30, is to be interpreted as meaning that withdrawal does not operate retrospectively — the person remains an “aided person” from grant to withdrawal of legal aid.
[21] In Carter v Western Viaduct Marine Ltd the litigant received a legal aid grant but the amount under that grant was exhausted.17 The grant was not extended because one of the plaintiffs received a lump sum payment from the Accident Compensation Corporation which meant he would be ineligible for legal aid. Williams J considered s 40 of the Legal Services Act 2000,18 and held that the plaintiffs were only protected by the immunity from costs while the grant of legal aid remained extant.19 Williams J’s reasoning was as follows:
[23] Seen in that light, there can be little doubt that when s 40 speaks of liability for costs orders made “with respect to the proceedings” it must be taken to refer to that part of the proceedings for which the litigant is an “aided person” and not to the whole of the proceedings irrespective of when legal aid is granted. The definition of “aided person” must be read in the same light. Indeed, when the definition of “aided person” refers to a person “who is or has been” granted legal aid, that must refer to the period when legal aid remains
15 Curtis v Gibson [2014] NZHC 69 at [19]. In CMD v JT [2011] NZCA 185, [2011] 2 NZLR 567 at [20] the Court of Appeal ordered that the respondent must pay costs for steps prior to the grant of legal aid, but the point was not specifically discussed.
16 R A Osborne (ed), McGechan on Procedure (online ed, Thomson Reuters) at [HRPt14.11(2)(a)].
17 Carter v Western Viaduct Marine Ltd (2003) 16 PRNZ 1034 (HC).
18 Section 40(2) of the Legal Services Act 2000 provided “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”.
19 Williams J cited in support of his view Simpson v Elliott HC Auckland CP54-SD99, 21 August 2001; Carnegie v Carnegie HC Hamilton A96/01, 15 March 2002; and Gitmans v Alexander, above n 8; and distinguished Gavey v Hay HC Christchurch CP37/99, 6 April 2001.
extant and not to the period which commences when the proceedings are filed and ends when they are finally concluded.
[24] That is consistent with the terms of the statute, the purpose of which is to enable access to justice by “people who have insufficient means to pay for legal services” (s 3(a)) which suggests that protection from costs orders should be coterminous with an inability to meet legal costs. While s 7 empowers the grant of civil legal aid for various civil proceedings, the Legal Services Agency has power to limit its support to interim grants, conditional grants, maximum grants and other conditions (ss 14, 15 and 20). It has power to increase the amount of contributions required (s 17) and it has power to amend or withdraw grants (ss 24, 26 and 27). It follows that the scheme of the Act is, as might be expected, one where, to preserve the rights of indigent citizens to justice, legal aid is provided but provided only to the extent they are unable to meet legal costs and thus remain entitled to legal aid (and, of course, with a charge on the proceeds of successful proceedings, s 32).
[25] It must follow that, even though grants of legal aid are retrospective from the date of the application, there is no basis in statute to take the view that once litigants are granted legal aid they are immune from orders for costs at any stage of the proceeding, either before or after the grant begins or terminates. Put another way, while the statute understandably limits litigants’ liability for costs otherwise payable to them during the period when they have “insufficient means to pay for legal services”, there is no reason to conclude that the liability of a litigant for costs does not operates in the normal way when the insufficiency ceases.
…
[28] In those circumstances, the appropriate conclusion is that the plaintiffs were recipients of legal aid from before the proceeding commenced until 11 November 1999 but the limited grant of aid was exhausted by that date, no application for additional aid was lodged and the plaintiffs thereafter were not of “insufficient means to pay for legal services” and funded the remainder of their case in this Court from the $110,000 received by Mr Carter from ACC during 1999.
[29] Therefore, being private litigants from 11 November 1999 at the latest, they rendered themselves liable for costs after that date in the ordinary way if unsuccessful.
[22] Carter v Western Viaduct Marine Ltd was considered in AA v LA which concerned an appeal from the Family Court on the making of relationship property orders.20 Mander J’s substantive judgment stated a preliminary view that the wife was entitled to costs. Mander J was unaware the husband had, a few days before the hearing, been granted legal aid. In ruling on costs, in light of this new information, Mander J cited paras [23]–[25] of Carter, as set out above, and said:
20 Carter v Western Viaduct Marine Ltd, above n 17; AA v LA, above n 7.
[15] Taken out of context, some of these remarks could be taken to mean the material factor is the date on which legal aid is granted, and that a person is only “legally aided” in respect of costs that are incurred after that date. However, taken as whole and in the context of that case it is clear this was not the Court’s meaning. Rather, the position of the Court was that s 45 immunity can only attach to costs for which the legally aided party is eligible for legal aid. In that case the plaintiffs were not immune for the whole of the costs because they were not eligible for legal aid with respect to the whole of the proceedings.
[16] In Gitmans v Alexander, Chambers J held that prior to an application for legal aid being confirmed as successful, where a costs order had been made, but not fixed, the aided person could not rely on s 45. However, in situations like the one currently at issue he noted:
I accept that a grant of aid could provide protection to an aided person with respect to steps taken by that aided person prior to the grant if no costs determination in respect of those steps had been made at the date of the grant.
[17] Legal aid grants which apply retrospectively can, therefore, provide s 45 immunity in relation to prior costs where no costs order has already been made. The question is not when legal aid was approved, but to which costs the grant of legal aid attaches.
…
[19] … The principle lying behind s 45 is that those who are unable to pay for their own legal services (as evidenced by a legal aid grant) should ordinarily be excused from paying the costs of the other party. As a result, the immunity should attach to the costs for which legal aid is provided, not the costs incurred in the period of time before legal aid has been approved.
(footnote omitted, emphasis added)
[23] Mander J considered that, because the letter confirming the husband’s grant of legal aid did not disclose any limitations or conditions on the grant, he was able to proceed on the basis that the husband was legally aided for the whole of the proceeding.21 As no exceptional circumstances existed, costs were to lie where they fell.22
[24] B v A concerned a legal aid grant that was made after judgment was released.23 Wylie J considered that s 45(2) did not confer retrospective immunity from costs and said:
21 At [20].
22 At [39].
23 B v A [2020] NZHC 765, (2020) 25 PRNZ 566.
[13] … Section 45(2) affords immunity against costs to “an aided person”. Pursuant to s 4, an aided person is a person who is granted legal aid. A person only becomes an aided person once a grant is made. There is nothing in s 45 to suggest that once a grant is made, immunity is conferred retrospectively. Rather, when a grant is made in civil proceedings, there is then an obligation to notify every other party and the Registrar of the relevant court. The obligation to notify arises on the grant of legal aid — not the date of application. Various decisions as to the conduct of proceedings will be based on whether the other party is legally aided. As has been observed by Judge Spear in the District Court, a party to civil proceedings might conceivably spend considerable resources pursuing a claim against a person believed not to be legally aided only to find at some later stage that the other party has protection from costs by the operation of s 45(2). I agree with the Judge that if the intention of the legislature in respect of s 45(2) was for the immunity to apply retrospectively, either from the commencement of the proceedings or the time of application for the grant of legal aid, it would have been a simple matter to have so specified. The legislature has not so specified and to construe s 45(2) as having such retrospective effect could well create injustice for a successful party who has conducted his or her proceedings assuming that the other party was not legally aided.
[14] In the present case, I held that Mrs B was entitled to her reasonable costs and disbursements on 20 March 2020. Mr A was not then an aided person. Having made that order, I became functus officio in relation to the issue of liability for costs. ...
(footnotes omitted)
[25] Some subsequent cases have cited B v A as standing for the proposition that immunity under s 45(2) applies from the date of the grant of legal aid. Campbell J in Ngāti Tama Custodian Trustee Ltd v Phillips said the approach taken by Wylie J in B v A was that “[t]he prima facie immunity under s 45(2) appears to apply from the date that the grant is awarded”,24 which he described as persuasive.25 I note, however, that his Honour applied the legal aid grant as applying retrospectively as the parties agreed it did.26
[26] In Hollands v Sorenson, the plaintiff was unsuccessful on his claim.27 On the morning of the first day of the hearing his counsel advised that he had been granted legal aid. Following the dismissal of the plaintiff’s claim the defendants sought costs. Grice J held that the immunity from costs available under s 45(2) applies from the date of the grant and not for steps taken by the plaintiff prior to the grant.28 She referred to
24 Ngāti Tama Custodian Trustee Ltd v Phillips [2021] NZHC 5 at [15].
25 At [18].
26 At [17].
27 Hollands v Sorenson [2021] NZHC 575.
28 At [10].
B v A and quoted from the judgment of Campbell J in Ngāti Tama Custodian Trustee Ltd v Phillips in support of that view.29
[27] Dunningham J considered B v A in Gill v Lethlean.30 There, a litigant was granted legal aid after the judgment was issued but before the costs hearing. The issue was whether s 45 applied to prevent a costs award against the legally aided party for the substantive proceedings. Dunningham J adopted the following interpretation of B v A:
[26] I am satisfied the case of B v A can be distinguished from the present case. In B v A, the Judge made a finding as to liability for costs before legal aid was confirmed and so, for the purposes of costs, that party could not be considered a legally aided person. Importantly, Wylie J did not consider his decision was inconsistent with the case of AA v LA, where costs had not been determined before the grant of legal aid. In that case, Mander J acknowledged that legal aid grants could apply retrospectively and consequently provide s 45 immunity in relation to prior steps where no costs order has already been made, saying “[t]he question is not when legal aid was approved, but to which costs the grant of legal aid attaches”. As Mander J noted, “the principle lying behind s 45 is that those who are unable to pay for their own legal services (as evidenced by a legal aid grant), should ordinarily be excused from paying the costs of the other party”. Therefore, the immunity should attach to the costs for which legal aid is provided.
[27] I accept in the present circumstances, it was unfortunate the grant of legal aid was not confirmed by Legal Services earlier in the proceeding. It would have been helpful if counsel had signalled to Mr Lethlean’s lawyer that Mr Gill had applied for legal aid as Mr Lethlean’s litigation strategy was premised on Mr Gill ultimately being required to meet his costs. Nevertheless, legal aid was granted for the defence of the restraining order application and, with the involvement of a lawyer, the application was resolved expeditiously. At the point the District Court Judge was considering costs, I am satisfied Mr Gill was a legally aided person and s 45 applied to all steps taken in the proceedings.
(footnotes omitted)
[28] This view has been supported in other cases where the limited nature of the legal aid grant is what prevents the grant from applying retrospectively. In Shi v So the plaintiff brought a claim but then discontinued it.31 She opposed costs, including on the basis that she was in receipt of legal aid, and relied upon the decision of Mander
29 At [10]–[11].
30 Gill v Lethlean [2021] NZHC 296, (2021) 25 PRNZ 718.
31 See Shi v So [2021] NZHC 879 at [27]; and Lincoln v Attorney-General [2020] NZHC 1810 at [11].
J in AA v LA.32 Venning J held that the point to be drawn from the cases was that the protection afforded by s 45 was not necessarily solely a timing issue of when aid is granted as the purpose of the grant is also relevant.33 As Ms Shi had been granted legal aid on an interim basis only, she was ordered to pay costs for the steps taken in the proceeding to which her grant did not relate.34
[29] I accept the approach that litigants are entitled to the protection s 45(2) provides for the costs to which a grant of legal aid attaches, as explained by Mander J in AA v LA.35 This does not necessarily mean the date from which legal aid is granted, as the cases recognise.36 I note the cases also recognise an exception to this where the costs have been awarded prior to the grant being made, even if the grant applies retrospectively.37 This is because the court is then functus officio.
[30] However, applying that approach, Mr Stills is not protected from liability for costs in respect of steps taken prior to his grant of legal aid. As Mander J identified in AA v LA, the immunity will attach to costs for which legal aid is provided. Here, Mr Stills’ grant of legal aid does not purport to relate to costs incurred in the proceeding prior to the grant and nor could it. It provides specifically in respect to services provided by Mr Miles Davis of Taylor Shaw who had no prior involvement in the proceeding and who notified the court and the McCormacks’ counsel that he was instructed on act on 26 May 2023 upon receipt of confirmation of the grant of legal aid.
[31] Importantly, this case is distinguishable from both AA v LA and Gill v Lethlean where it was held legal aid had been granted in respect to the entire proceeding.38 There can be no basis for such a finding in this case when, until 22 May 2023, Mr Stills was a self-represented litigant.39 Regardless of his financial circumstances, Mr Stills
32 AA v LA, above n 7.
33 At [27].
34 At [31].
35 AA v LA, above n 7, at [17].
36 Gitmans v Alexander, above n 8, at [13].
37 B v A, above n 23, at [14]; Gitmans v Alexander, above n 8; and Simpson v Elliott, above n 19.
38 AA v LA, above n 7; Gill v Lethlean, above n 30.
39 Apart from the brief period he engaged counsel as discussed at [4] above.
was not entitled to a grant of legal aid when he had not engaged counsel to provide legal services but was representing himself.40
[32] It follows that s 45(2) does not confer on Mr Stills immunity from a costs award for steps taken prior to his grant of legal aid.
[33] It also follows that Mr Stills’ alternative argument based on s 45(1), that the Court must consider the parties’ means and conduct, must also fail in respect to the period for which costs are claimed by the McCormacks. This is because Mr Stills was not an aided person for the purposes of the section during that period.
[34] This issue arose in Bach v Prison Director, Auckland South Corrections Facility – Serco, where costs were claimed during a period which was not covered by the unsuccessful plaintiff’s grant of legal aid.41 The plaintiff, who was a serving prisoner, argued that no order for costs should be made under s 45(1). Gordon J rejected that submission which she described as misconceived because:42
… Mr Bach was not an “aided person” for the period in respect of which costs are sought. Where legal aid services are provided for some, but not all, of the relevant period, costs immunity under s 45 will only apply to the periods of time, steps in the proceeding, or particular tasks covered by a grant of aid.
Are the McCormacks entitled to costs?
[35] The McCormacks were successful in opposing Mr Stills’ application to sustain the caveat. I can see no reason to depart from the general rule that they are entitled to their costs in respect of steps taken prior to Mr Stills’ grant of legal aid.
[36] I do not accept Mr Stills’ submissions to the effect that he has a caveatable interest in the property, that he would have been successful if he had not been let down by his lawyer, or that the interlocutory applications he made were justified in the circumstances. These arguments are simply attempts to relitigate the merits of his applications, which have already been determined against him.
40 Legal Services Act, s 4(7) definition of “legal aid services”.
41 Bach v Prison Director, Auckland South Corrections Facility – Serco [2022] NZHC 3138.
42 At [25].
[37] I have considered the schedule of costs claimed by the McCormacks. I accept they are entitled to costs in respect of all steps claimed except in two respects. I cannot see any record of a case management conference on 8 January 2023 (which is during the court vacation) nor do I allow their claim for second counsel at the substantive hearing as the application was not of such complexity in my view as to require second counsel.
[38] I do not accept Mr Stills’ submission that if costs are to be awarded they should be calculated on a 2A basis. Having considered each step in the proceeding I am satisfied they have been correctly claimed on a 2B basis.
[39] Mr Stills has argued he is entitled to some credit because he successfully opposed the McCormacks’ application for security for costs. While there is some superficial attraction in that submission, I cannot accept it. Mr Stills is not entitled to costs which he did not in fact incur.
[40] Finally, the McCormacks seek an uplift on scale costs. I consider this is justified. Most importantly, Mr Stills advanced his case on the basis the McCormacks and others had cheated the Stills family of their entitlement to the land. His affidavits dealt with these allegations in detail, and his applications for discovery and to prevent the McCormacks’ lawyers from acting were premised upon them. Ultimately a great deal of time, effort and expense was directed towards allegations that were irrelevant to the issues that were advanced on Mr Stills’ behalf at the hearing. I do not accept Mr Stills’ criticism of his lawyer for not relying on these matters and consider he was correct not to do so. While in some cases the allegations made can be explained as reflecting a lack of objectivity arising from the high tension in the relationship between the parties, some of them, such as the allegations against CPT, cannot.
[41] I do not take into account the late filing of further affidavits by Mr Stills, which undoubtedly resulted in additional costs for the McCormacks, because that occurred after he was granted legal aid.
[42] Counsel for the McCormacks have referred me to three cases where an uplift of 40 or 50 per cent on scale costs was awarded and argue a 50 per cent uplift can be
applied here.43 It is difficult to compare the facts of different cases as all will, to some degree or another, be unique. I consider I must give some recognition to the fact that Mr Stills is not a lawyer, he has suffered throughout the proceeding from health issues, and has struggled to understand the relevant law and court processes. These factors will have contributed to the unsatisfactory manner in which the case has proceeded. In all the circumstances I will grant the McCormacks an uplift of 20 per cent on scale costs.
Result
[43] The McCormacks are awarded costs and disbursements totalling $19,435.60 (representing 2B scale costs for steps prior to 17 May 2023 with a 20 per cent uplift, and disbursements) as set out in the schedule to this judgment.
O G Paulsen Associate Judge
Solicitors:
Young Hunter, Christchurch Copy to:
Mr A Stills, Applicant
43 NR v MR [2014] NZCA 623, (2014) 22 PRNZ 636; Broadspectrum (New Zealand Ltd) v Nathan [2017] NZCA 434, [2017] ERNZ 733; and Smith v Prain [2020] NZHC 1766, upheld in Stokes v Prain [2021] NZCA 683.
SCHEDULE A
Costs incurred prior to 17 May 2023
| Item | Description | Allocation | Occurrences | Total | Date | 2B Costs | 20% Uplift |
| 38 | Filing notice of opposition and supporting affidavits to originating application | 2.0 | 1 | 2.0 | 11/10/22 | $4,780.00 | $5,736.00 |
| 39 | Appearance at first or subsequent case management conference in | 0.3 | 5 | 1.5 | 13/10/22 | $3,585.00 | $4,302.00 |
| originating application | 05/12/22 | ||||||
| 31/01/23 | |||||||
| 08/02/23 | |||||||
| 03/05/23 | |||||||
| 23 | Filing opposition to interlocutory applications | 0.6 | 1 | 0.6 | 01/12/22 | $1,434.00 | $1,720.80 |
| 24 | Preparation of written submissions on interlocutory applications | 1.5 | 1 | 1.5 | 26/01/23 | $3,585.00 | $4,302.00 |
| 25 | Preparation of bundle for hearing on interlocutory applications | 0.6 | 1 | 0.6 | 26/01/23 | $1,434.00 | $1,720.80 |
| 26 | Appearance at defended interlocutory applications by principal counsel | 0.25 | 2 | 0.5 | 08/03/23 | $1,195.00 | $1,434.00 |
| Filing fee for notice of opposition to originating application |
| 1 | 1 | 11/10/22 | $110.00 | $110.00 | |
| Filing fee for notice of opposition to interlocutory application |
| 1 | 1 | 01/12/22 | $110.00 | $110.00 | |
| Total costs incurred prior to 17 May 2023 | $16,233.00 | $19,435.60 | |||||
0
0