T v B

[2023] NZHC 2083

NOTE: ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER

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IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2023-404-905

[2023] NZHC 2083

UNDER

the Family Proceedings Act 1980

IN THE MATTER

of an appeal against a decision of the Family Court, pursuant to s 174

BETWEEN

T

Appellant

AND

B

Respondent

Judgment:

(On the papers)

7 August 2023

JUDGMENT OF BREWER J

This judgment was delivered by me on 7 August 2023 at 3.30 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Jenny Beck Law (Dunedin) for Appellant

T v B [2023] NZHC 2083 [7 August 2023]

Introduction

[1]        The appellant appeals against a costs order made against her in the Family Court. The costs order is for $4,000. It was made by Judge H J Ellis and is recorded in a Memorandum.1

[2]        No steps have been taken by the respondent.  Mr Smith, in an affirmation of  4 August 2023, says that he “duly” served the respondent’s counsel with the Notice of Appeal by email on 6 April 2023.2

[3]In these circumstances, I will decide the appeal on the papers.

Discussion

[4]        The basis of the appeal is that Judge Ellis made her decision under the misapprehension that the appellant was not legally aided. Mr Smith’s affirmation confirms that she was.

[5]Judge Ellis’s decision is in these terms:

14. The power to order costs is discretionary. Taking  into account  the  above I make an order for [T] to pay costs in the sum of $4,000.00. This is less than actual costs and less than 2/3 of the daily recovery rate (less the reduction for interlocutory application.) These proceedings spanned some 18 months - September 2021 to January 2023, an extensive period. [T] has had the opportunity to have her say as to costs and not provided submissions. She is not required to contribute to the costs of LFC. She was not legally aided and will no doubt have her own legal fees also to pay for. The fact she is not legally aided and her engagement with her own counsel suggests some ability to pay. The sum is reasonable given that it is implicit in the decision that neither party should pay a CCO that there would be serious hardship to [T] or the children were she required to contribute. I have reduced it by some $836.25 to take into account that I do not consider she is responsible for the application to extend time.

[6]        Section 45 of the Legal Services Act 2011 provides:

1      The copy on the file is unsigned and undated. It is marked as having a date of authentication of  8 March 2023. Mr Smith, then counsel for the appellant, in the Notice of Appeal, says the registry sent the Minute to counsel on 14 March 2023.

2      A copy of the email is annexed to the affirmation. I take Mr Smith’s use of the word “duly” to mean that service by email was stipulated by the respondent pursuant to r 5.44(1)(e).

45       Liability of aided person 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 means of the next friend or guardian ad litem are taken as being the means of the aided person.

Decision

[7]        The appeal is by way of rehearing. It is clear that, inadvertently, the Judge made her decision on an erroneous basis of fact. As a result, the Judge did not consider a mandatory legal test.

[8]        The appeal is allowed. The Judge’s decision to award costs to the respondent is quashed.

[9]        I will not direct the Judge to rehear the application for costs because the Judge’s decision traversed carefully and in detail the history of the proceedings between the parties and it is unnecessary to do that again. The only point on appeal was the failure to take into account that the appellant was legally aided. Accordingly, I direct the Judge to consider s 45 of the Legal Services Act 2011 and to determine the respondent’s application for costs having done so.

Brewer J