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…

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 Tucker v Pere

Details

AGLC: Tucker v Pere [2025] NZHC 121
Case: [2025] NZHC 121
Decision Date: 12 February 2025

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Tucker v Pere involved a dispute over costs following the dismissal of an appeal against orders made under the Harmful Digital Communications Act 2015. Samuel Tucker, the appellant, was legally aided and sought to appeal against orders made by Nicola Pere, the respondent. Ms Pere sought an order for costs incurred before Mr Tucker was granted legal aid, an order specifying the costs that would have been awarded had Mr Tucker not been legally aided, and an order fixing costs previously awarded by Venning J. The legal issues before the court involved the application of the Legal Services Act 2011, specifically sections 45(2) and 45(5), and the principles governing the award of costs in litigation.

Anderson J held that under section 45(2) of the Legal Services Act, no order for costs could be made against a legally aided person unless there were exceptional circumstances, and such a qualified immunity applied to costs incurred after the grant of legal aid. Since no costs had been ordered prior to the grant and there were no exceptional circumstances, Ms Pere was not entitled to recover costs of $1,912 for steps taken before the grant of legal aid. However, the court exercised its discretion under section 45(5) to specify the costs that would have been awarded had Mr Tucker not been legally aided. The court found that scale costs on a 2B basis would have amounted to $14,818, along with disbursements of $218.35. The court concluded that none of the factors Ms Pere cited justified increased costs, except for costs related to Mr Tucker's failure to comply with court directions and unsuccessful interlocutory applications. Additionally, the court ordered Mr Tucker to pay Ms Pere $956 in accordance with Venning J's previous order.

In summary, the court dismissed Ms Pere's claim for costs incurred before the grant of legal aid but made an order under section 45(5) of the Legal Services Act, specifying that but for the application of section 45(2), Ms Pere would have been awarded scale costs of $14,818 and disbursements of $218.35. Mr Tucker was also ordered to pay Ms Pere $956 as per Venning J's previous order.

Orders