Tucker v Pere

[2025] NZHC 121

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2021-419-000168

[2025] NZHC 121

BETWEEN

SAMUEL TUCKER

Appellant

AND

NICOLA PERE

Respondent

On the papers
Counsel:	S M Kilian for Appellant K I Bond for Respondent
Judgment:	12 February 2025

JUDGMENT OF ANDERSON J

[Costs]

This judgment was delivered by me on 12 February 2025 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules 2016.

………………………………

Registrar/Deputy Registrar

Solicitors:      Kilian & Associates, Auckland

Braun Bond & Lomas Limited, Hamilton

TUCKER v PERE [2025] NZHC 121 [12 February 2025]

[1]                 This decision relates to costs issues following my dismissal of Mr Tucker’s appeal against orders made against him under the Harmful Digital Communications Act 2015.1 Mr Tucker is legally aided.

[2]Ms Pere seeks:

(a)An order for costs against Mr Tucker in relation to steps taken in the appeal prior to when he was granted legal aid.

(b)An order under s 45(5) of the Legal Services Act 2011 specifying the costs and disbursements  that  would  have  been  awarded  against  Mr Tucker had he not been legally aided. Increased costs are sought.

(c)An order fixing costs awarded by Venning J on 8 February 2022.

General costs principles

[3]                 Costs are at the discretion of the Court.2 The key principles applicable to the determination of costs are set out in r 14.2 of the High Court Rules 2016 and include that the party who fails with respect to a proceeding should pay costs to the party who succeeds.

[4]                 Ordinarily, costs are awarded pursuant to the scale. Increased costs may be justified under r 14.6(3)(b) where a party has taken improper or unreasonable steps.3 Increased costs are not punitive4 and will not be appropriate where there is some reasonable explanation for the defendants’ conduct.5 The party seeking increased costs bears the onus of demonstrating such costs are justified.6

1      Tucker v Pere [2024] NZHC 3209.

2      High Court Rules 2016, r 14.1(1).

3      Bradbury v Westpac Banking Corp [2009] NZCA 234, [2009] 3 NZLR 400 at [27].

4      Wilding v Te Mania Livestock Ltd [2018] NZHC 1506 at [176].

5      Valmar Trustee Ltd v Smart Water Technology [2016] NZHC 1583 at [12].

6      Strachan v Denbigh Property Ltd HC Palmerston North CIV-2010-454-232, 3 June 2011.

Costs prior to the grant of legal aid

[5]                 By section 45(2) of the Legal Services Act 2011 no order for costs may be made against a legally aided person in a civil proceeding unless the court is satisfied that there are exceptional circumstances.

[6]                 Mr Tucker was granted legally aided status on 1 October 2021. Consistent with Isac J’s view in Hürlimann v Lilley, in my view the s 45(2) qualified immunity applies to cost orders made after legal aid was granted, even if the order relates to steps in a proceeding prior to the grant. The qualified immunity does not apply where the costs order has been made prior to the grant.7 In the latter case, the liability to costs has crystallised prior to the grant and hence at a time when the person was not legally aided.

[7]                 Here, no costs had been ordered prior to the grant of legal aid and no exceptional circumstances apply. Ms Pere is not entitled to recover costs of $1,912 for steps taken prior to the grant of legal aid.

Costs that would have otherwise been awarded

[8]                 Ms Pere seeks an order under s 45(5) of the Legal Services Act. That section provides that if no order for costs is made against an aided person, an order may be made specifying what order for costs would have been made had such an order not been prohibited. If an order under s 45(5) is made, a party may apply to the Commissioner under s 46 to recover the costs that would have been payable but for  s 45.

[9]                 An order under s 45(5) is discretionary8 but will generally be made if s 45 has impacted the amount of costs awarded.9

[10]             Although not explicit, I infer that the purpose of the order sought in this case is to enable Ms Pere to make an application to the Commissioner under s 46. In these

7      Hürlimann v Lilley [2023] NZHC 352 at [11].

8      AB v Attorney-General [2012] NZHC 3626 at [14].

9      At [15] and Laverty v Para Franchising Ltd [2006] 1 NZLR 650 (CA) at [32].

circumstances I consider this an appropriate case to exercise my discretion to make a s 45(5) order.

[11]             Turning to what costs  would have been payable but for the application of     s 45(2), scale costs on a 2B basis amount to $14,818. Ms Pere submits an uplift of  20 per cent would have been justified on the basis that:

(a)Mr Tucker unreasonably rejected an offer to settle the proceeding made by Ms Pere on 4 April 2022;10

(b)Mr Tucker failed to comply with directions of the Court;11

(c)Mr Tucker’s interlocutory applications for a stay and tailored discovery lacked merit and were unnecessary;12

(d)Mr Tucker pursued arguments that lacked merit;13 and

(e)Mr Tucker pursued the appeal as “a point of principle” arguably rendering the whole appeal unnecessary.14

[12]             For the following reasons, I do not consider any of the above justifies increased costs.

(a)Failure without reasonable justification to accept an offer to settle litigation provides a basis for increased costs under r 14.6(3)(b)(v). However, “a failure to accede to an invitation to drop a claim entirely will not ordinarily be treated as an unreasonable failure to settle”.15 In my view, the 4 April 2022 offer was not an offer to settle in the sense contemplated by the Rules. Rather, it was a “walk away” offer

10     High Court Rules, r 14.6(3)(b)(v).

11     Rule 14.6(3)(b)(i).

12     Rule 14.6(3)(b)(ii).

13     Rule 14.6(3)(b)(ii) and (iii).

14     Rule 14.6(3)(b)(ii).

15     Gough v Strahl [2014] NZHC 1038 at [21].

providing that should Mr Tucker abandon his appeal, Ms Pere would agree not to pursue the costs award made by the District Court Judge.16

(b)Even if the offer was of a kind contemplated by the Rules, it was not unreasonable for Mr Tucker to reject it. The appeal involved uncertain questions of law concerning the interpretation of the communication principles under the Harmful Digital Communications Act. It is understandable that Mr Tucker wished to test his position.17   Further,  I found that some of Mr Tucker’s points had merit. No uplift is justified on this basis.

(c)I accept Ms Pere may have  incurred  additional  costs  because  of  Mr Tucker’s failure to comply with Court directions. I also accept these failures required Venning J to make unless orders on 8 February 2022. However, scale costs are available for steps consequent on the breach. The same is true for any additional steps taken in relation to the unsuccessful interlocutory applications. Increased costs are justified on that ground.18

(d)Mr Tucker’s appeal was not so lacking in merit as to justify increased costs. I found that elements of the appeal were not “clear cut”19 and more “finely balanced” than existing authority.20 It follows that I also do not accept that the appeal was unnecessary. Mr Tucker was entitled to pursue his appeal. That he was ultimately successful is not sufficient to engage r 14.6(3)(b)(ii).

[13]             I therefore consider that costs of $14,818 would have been awarded on a 2B basis. Ms Pere would also have been entitled to $218.35 in disbursements.

16     Hira Bhana & Co Ltd v PGG Wrightson Ltd [2007] NZCA 342 at [26].

17     See Blanchett v RBI Ltd [2014] NZHC 2450 at [17].

18     Valmar Trustee Ltd v Smart Water Technology, above n 5, at [12].

19     Tucker v Pere, above n 1, at [86].

20 At [99].

Costs ordered by Venning J

[14]             On 8 February 2022, Venning J awarded costs to Ms Pere for a memorandum filed in relation to Mr Tucker’s failure to comply with timetable directions. Venning J must have been satisfied that the “exceptional circumstances” threshold in s 45(2) was met.

[15]Ms Pere advises that the costs incurred in respect of this memorandum were

$956. I accept this sum is payable by Mr Tucker to Ms Pere in accordance with Venning J’s order.

Result

[16]             In accordance with the order made  by  Venning  J  on  8  February  2022,  Mr Tucker is to ordered to pay Ms Pere $956.

[17]             I make an order under s 45(5) of the Legal Services Act 2011 that but for the application of s 45(2), I would have awarded Ms Pere scale costs on a 2B basis of

$14,818 and disbursements of $218.35.

Anderson J