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 anor v Conroy and anor [2024] NZHC 1467.

2      Taylor and anor v Conroy and anor [2024] NZHC 2210.

3 At [12].

4      Curtis v Commonwealth of Australia [2019] NZCA 126 at [17].

costs of counsel, and will incur an obligation to the Commissioner to pay them.

[6]    Ms Conroy has not advised the specified amount she is required to pay the Commissioner in respect of the amount of $4,301.92 that will be paid to her counsel. Rule 14.2(1)(f) of the High Court Rules 2016 applies the general principle that “an award of costs should not exceed the costs incurred by the party claiming costs (not being a party acting in person)” to the determination of costs in this case. It might therefore be asserted that the costs incurred by Ms Conroy may be less than those she is claiming, and that if so, r 14.2(1)(f) stands in the way of her claim.

[7]    In my view, assuming an award of costs would otherwise be appropriate, any such assertion can and should be overcome.

[8]    First, it should be noted that, in P v Minister of Immigration, Randerson J found that costs exceeding the amount of a legally aided party’s contribution under s 21 may be awarded.5 And in Curtis, the Court of Appeal adopted that view, agreeing with Randerson J’s observation that “the legislative policy [of the Legal Services Act] is that the expenditure incurred by the taxpayer in legal aid should be recovered whenever it is lawful and practical to do so”.6 Certainly, the prohibition, arising under s 45(2), against costs being awarded against legally aided parties in the absence of exceptional circumstances, does not apply to prohibit costs being awarded in their favour.7

[9]    But that said, the courts in P v Minister of Immigration and in Curtis were content to order that costs exceeding the legally aided parties’ contributions be paid to them,   apparently   anticipating   that   the   parties   would   account   to    the   Legal Services Commissioner in full. This approach, involving an award made nominally to the legal aided party claiming costs, does not fully grapple with the difficulty that the “costs incurred by the party claiming [them]” might well be less than that party’s actual costs.

5      P v Minister of Immigration (1999) 13 PRNZ 370.

6      Curtis, above n 4, at [19] citing P v Minister of Immigration, above n 5, at 371.

7 At [15].

[10]   My view is that the solution to this difficulty is found elsewhere in Curtis, where the Court of Appeal referred to the discretion of both the High Court and the Court of Appeal to make costs  orders  in  favour  of  non-parties,  such  as  the  Legal Services Commissioner.8 More particularly, I consider that a court addressing a claim for costs, made nominally by a legally aided party, should regard the claim as one made on behalf of the Commissioner. Thus, the reference in r 14.2(1)(f) to the “party claiming costs” can and should be construed as a reference to the Commissioner.

[11]   I further consider it follows that, in these situations, any appropriately awarded costs should be awarded not to the legally aided party, but to the Commissioner.

[12]   The question, then, is whether it is appropriate that the Commissioner should be awarded the costs that Ms Conroy claims on their behalf?

Is an award appropriate?

[13]My clear view is that Ms Conroy is entitled to an award of costs.

[14]   The Taylor applicants’ preference for an off-market sale was understandable. And I acknowledge that Ms Conroy may, via correspondence, have given the impression she might consent. But it is not suggested that she gave, then withdrew, her consent to variation of the Court’s sale directions. And in the absence of her clear consent to a sale, otherwise than upon the engagement of the nominated real estate agent tasked with marketing the Property, the Taylor applicants assumed the usual risk associated with pursuing litigation that might later prove unsuccessful; that is, the risk of adverse cost consequences.

[15]   I see no reason why the general principle that the party who fails with respect to an interlocutory application (including upon their discontinuance) should pay costs to the party who succeeds9 should not apply. And on that basis (except to the extent that the Commissioner’s costs are less than scale) the 2B scale should apply.10

8 At [20].

9      Rule 14.2(1)(a).

10     Rule 14.2(1)(b)-(e) and (g).

Result

[16]   Ms Conroy’s costs application, which I regard as having been made on behalf of the Legal Services Commissioner (by memorandum dated 18 March 2025) is granted.

[17]The Taylor applicants must pay costs to the Commissioner in the sum of

$4,301.92, by forwarding that sum to Ms Conroy’s solicitor.

Johnstone J