Turner v Public Trust - [2020] NZHC 622

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2019-419-326

[2020] NZHC 622

IN THE MATTER of the Trustee Act 1956

BETWEEN

MAPUNA LYNETTE TERESA TURNER

Plaintiff

AND

THE PUBLIC TRUST

Defendant

Hearing: On the papers

Appearances:

M Reason for Plaintiff A Holden for Defendant

Judgment:

24 March 2020

JUDGMENT OF LANG J

[on costs]

This judgment was delivered by me on 24 March 2020 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

Solicitors:
Nolan & Lu, Lawyers, Hamilton Wilson Harle, Auckland
M Reason, Te Aroha

TURNER v THE PUBLIC TRUST [2020] NZHC 622 [24 March 2020]

[1] On 7 February 2020 I issued a judgment in which I declined an application by Ms Turner for a freezing order and/or injunctive relief preventing the Public Trust from selling a property owned by the estate of the late Dennis Paul Samson.1 I am now required to fix costs in relation to the application.

[2] The Public Trust seeks an award of costs against Ms Turner on a category 2B basis together with disbursements as fixed by the Registrar. These would amount to approximately $11,310.91. The Public Trust has incurred total legal costs of approximately $34,000 dealing with this matter.

[3] The Public Trust was undoubtedly the successful party in this proceeding and would ordinarily be entitled to an award of costs against Ms Turner. The issue of costs is complicated in the present case by two factors. The first is that Ms Turner was the recipient of a grant of legal aid in relation to the application. The second is that Ms Turner is currently an undischarged bankrupt.

Costs against a legally aided party

[4] Section 45 of the Legal Services Act 2011 (the LSA) relevantly provides as follows:

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:

1 Turner v The Public Trust [2019] NZHC 92.

(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…

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 Turner v Public Trust

Details

AGLC: Turner v Public Trust [2020] NZHC 622
Case: [2020] NZHC 622
Decision Date: 24 March 2020

CaseChat Overview and Summary

In the High Court of New Zealand, Turner v The Public Trust was a case involving Mapuna Lynette Teresa Turner, who sought to prevent the Public Trust from selling a property owned by the estate of the late Dennis Paul Samson. Turner, who stood to inherit a one-half share of the proceeds from the sale of the property, sought a freezing order and injunctive relief against the Public Trust. However, Justice Lang declined the application for relief in a previous judgment.

The court was required to decide on the appropriate costs to be awarded against Turner. The Public Trust, as the successful party, sought an award of costs against Turner on a category 2B basis, along with disbursements. Turner, who was the recipient of a grant of legal aid, argued that any costs awarded against her should be limited by the Legal Services Act 2011. The court needed to balance Turner's means, her conduct in the case, and the potential for her financial situation to change in the future.

Justice Lang found that Turner was the unsuccessful party in the proceeding and should ordinarily be liable for costs. However, the court considered Turner's receipt of legal aid and her status as an undischarged bankrupt. The court found that it was reasonable for Turner to pay costs on a category 2B basis, as her financial situation was likely to improve once her bankruptcy was resolved. The court also found that exceptional circumstances existed under the Legal Services Act, as Turner's conduct in the case had caused unnecessary costs for the Public Trust. Therefore, the court awarded costs against Turner on a category 2B basis, along with disbursements.

The court declined to make an order requiring the Official Assignee to pay the Public Trust's costs before distributing any surplus to Turner. The court found that such an order would be contrary to the Insolvency Act 2006 and would not be appropriate in this case. The Public Trust would need to pursue other means to recover the costs awarded against Turner.

Orders