WL v AJ - [2023] NZHC 3426

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B,

11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

https://

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2020-441-77 CIV-2021-441-41

[2023] NZHC 3426

BETWEEN
WL

Plaintiff

AND

AJ

First Defendant

AND

RA

Second Defendant

Hearing: On the papers

Appearances:

P N Ross for the Plaintiff

E V R Stannard for the Defendants

Judgment:

29 November 2023

JUDGMENT OF PALMER J

(Costs)

Solicitors
Willis Legal, Hastings
Cathedral Lane Law Holdings Limited, Napier

WL v AJ [2023] NZHC 3426 [29 November 2023]

Judgment

[1] In a judgment of 31 March 2023, Mallon J made directions to divide relationship property in these proceedings equally between the parties, including the former family home.1 She made the following orders:2
(a)WL’s applications for constructive trust, knowing receipt and breach of fiduciary duty are dismissed.

(b)The Agreement (pursuant to which AJ agreed to make no claim on the Property) is void pursuant to s 21F and is not to be given effect under s 21H.

(c)There are no extraordinary circumstances that make equal sharing of the Property repugnant to justice under s 13 of the PRA.

(d)The relationship property (inclusive of the Property) is to be shared equally.

(e)AJ’s claim for occupation rent pursuant to s 18B of the PRA is dismissed.

(f)Within three weeks of the date of this judgment, the parties are to file brief submissions if they are unable to resolve costs despite the indication I have given that they follow the event and band 2B should apply.

Law of costs regarding legally aided litigants

[2] WL and AJ are in receipt of legal aid. RA is not. Section 45 of the Legal Services Act 2011 provides, relevantly:

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:

1 WL v AJ [2023] NZHC 703 at [106].
2 At [106].

(a)any conduct that causes the other party to incur unnecessary cost:

(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…

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 WL v AJ

Details

AGLC: WL v AJ [2023] NZHC 3426
Case: [2023] NZHC 3426
Decision Date: 29 November 2023

CaseChat Overview and Summary

In this case, WL and AJ are parties to a property dispute that was heard in the High Court of New Zealand. The dispute involved the division of relationship property, including the former family home, and various other claims such as constructive trust, knowing receipt, and breach of fiduciary duty. The Court previously ruled on the division of the property, finding that it should be shared equally between the parties.

The primary legal issue before the court was whether WL, who is receiving legal aid, should be ordered to pay the costs incurred by AJ. The court considered whether there were "exceptional circumstances" under Section 45(2) of the Legal Services Act 2011, which would allow for costs to be awarded against a legally aided litigant. Ms Stannard, representing AJ and RA, argued that WL should pay the costs due to delays and non-compliance with court orders. Conversely, Mr Ross, representing WL, argued that there were no exceptional circumstances justifying an award of costs.

The court carefully examined the submissions from both sides. While it acknowledged delays and non-compliance by WL, it also noted that AJ had her own delays and that some of WL's actions, such as testing the validity of the contracting out agreement, were not unreasonable. The court found that the pursuit of the constructive trust claim, which was ultimately abandoned, did not significantly prolong or complicate the proceedings. Given the relatively minor nature of the issues, the court concluded that there were no exceptional circumstances warranting an award of costs against WL.

Ultimately, the court declined to award costs to AJ, noting that if Section 45 had not applied, it would have ordered WL to pay costs on a 2B basis, adjusted to not exceed the actual costs of $30,525.44. This decision underscores the careful consideration required when determining costs against legally aided litigants, particularly in cases where the merits are relatively straightforward.

Orders