Taylor v Conroy - [2025] NZHC 1020

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-1361

[2025] NZHC 1020

UNDER s 339 of the Property Law Act 2007 and pt 19 of the High Court Rules 2016

BETWEEN

CHRISTOPHER GEORGE TAYLOR

Applicants

AND

HELEN MIRIAM CONROY AND MGH CONROY LIMITED AS TRUSTEES OF THE HAWKRIDGE DOOLITTLE TRUST

Respondents

Hearing: on the papers

Appearances:

W E Andrews for applicants

A M E Parlane for respondents

Judgment:

1 May 2025

JUDGMENT OF JOHNSTONE J

(costs on withdrawal of application to vary sale orders)

This judgment was delivered by me on 1 May 2025 at 3pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Pidgeon Judd, Auckland Parlane Law, Auckland

TAYLOR v CONROY [2025] NZHC 1020 [1 May 2025]

[1] By judgment dated 5 June 2024, I ordered that a property at Wilson Road, South Head, held in the registered ownership of the parties in their capacity as trustees, be sold.1 I later made directions providing for the mechanics of sale, and ordered that Ms Conroy (who was unsuccessful in opposing the sale order) pay costs.2 The sale directions required the applicants (the Taylor applicants) to engage a real estate agent to market the Property for sale at no less than its fair market value. The costs order was made despite Ms Conroy’s status as a legally aided person, on the basis that there were, in terms of s 45(2) of the Legal Services Act 2011, “exceptional circumstances” justifying that course.3 I reserved leave to apply to vary the sale directions.

[2] The Taylor applicants applied to vary the sale directions, to permit an off-market sale. Ms Conroy opposed. The Taylor applicants withdrew their variation application.

[3] Ms Conroy now seeks costs. The Taylor applicants oppose, submitting that costs should lie where they fall.

Ms Conroy’s claim

[4] Ms Conroy initially sought 2B scale costs, of $4,780. However, she reduced her claim, recognising that Legal Services will be invoiced for 22.4 hours at the civil legal aid rate of $167 per hour plus GST, to $4,301.92.

The effect of legal aid

[5]As observed by the Court of Appeal in Curtis v Commonwealth of Australia:4

The Legal Services Act provides at s 18(2) that every grant of legal aid is subject to a condition that the aided person must pay to the Legal Services Commissioner a specified amount calculated in accordance with s 21. Under s 34(1) amounts payable to the Commissioner may be recovered as a debt due. Under s 36(1) the proceeds of proceedings to which a grant of legal aid relates are subject to a charge in favour of the Commissioner for the amount of the repayment under the grant. Under s 41 an aided person must take all steps necessary to enforce a judgment to recover the proceeds of proceedings. A recipient of legal aid is therefore to be liable in whole or in part to pay for the

1 Taylor and…

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 Taylor v Conroy

Details

AGLC: Taylor v Conroy [2025] NZHC 1020
Case: [2025] NZHC 1020
Decision Date: 1 May 2025

CaseChat Overview and Summary

The case of Taylor v Conroy involved a dispute between Christopher George Taylor and Helen Miriam Conroy, along with MGH Conroy Limited as trustees of the Hawkridge Doolittle Trust, regarding the sale of a property at Wilson Road, South Head. The matter was heard in the High Court of New Zealand, Auckland Registry. The dispute centered around the applicants' unsuccessful application to vary the sale directions of the property, which had been previously ordered to be sold by the court. The applicants sought to permit an off-market sale, a request which was opposed by Ms. Conroy. Subsequently, the applicants withdrew their application to vary the sale directions.

The primary legal issue before the court was whether Ms. Conroy was entitled to costs for the unsuccessful application to vary the sale directions. Ms. Conroy, who was legally aided, had initially sought 2B scale costs of $4,780, which she later reduced to $4,301.92. The court had to determine if these costs could be awarded given Ms. Conroy's status as a legally aided person, and if so, whether the costs should be awarded to her or to the Legal Services Commissioner. The court had to balance the principle that costs should not exceed those actually incurred by the party claiming them against the policy of recovering taxpayer expenditure on legal aid.

The court reasoned that costs should be awarded to the Commissioner, not to Ms. Conroy, as the claim was effectively on behalf of the Commissioner. It was held that the principle allowing for costs exceeding a legally aided party's contribution to be awarded could still apply, provided that the Commissioner was the intended recipient. The court concluded that it was appropriate to award costs to the Commissioner as Ms. Conroy was entitled to an award for the unsuccessful application, and the general principle that the party who fails in an interlocutory application should pay the costs of the succeeding party applied here. The court granted Ms. Conroy's costs application, which was effectively a claim on behalf of the Legal Services Commissioner.

Orders