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Stills v McCormack

Stills v McCormack

Case [2023] NZHC 3200 14 November 2022

Costs

Legal Aid

Jurisdiction

Unconscionable Conduct

Res Judicata

Civil Litigation & Procedure

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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,…

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 Stills v McCormack

Details

AGLC: Stills v McCormack [2023] NZHC 3200
Case: [2023] NZHC 3200
Decision Date: 14 November 2022

CaseChat Overview and Summary

The case of Stills v McCormack involved a dispute between Andrew Edward Stills (the applicant) and Robert James Louis McCormack and Elizabeth Robyn McCormack (the respondents) regarding a caveat lodged by Mr Stills over a property in Little Akaloa. The respondents sought costs against Mr Stills on a 2B basis with a 50 per cent uplift, arguing that Mr Stills had unnecessarily contributed to the time and expense of the proceeding. Mr Stills opposed any order for costs, arguing that his grant of legal aid should protect him from liability for costs. The court considered the relevant statutory provisions and case law to determine whether Mr Stills' grant of legal aid provided him with immunity from costs for steps taken prior to the grant. The court concluded that Mr Stills was not entitled to immunity from liability for costs for steps taken prior to his grant of legal aid, as the grant did not cover those steps. The court further found that the McCormacks were entitled to their costs for steps taken prior to Mr Stills' grant of legal aid, but reduced the amount by excluding the record of a case management conference and disallowing the claim for second counsel at the substantive hearing. The court awarded the McCormacks 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.

Orders