SEN v PUBLIC TRUST [2021] NZHC 2416 [14 September 2021]
The court held that ordinary rules require interlocutory costs to be decided at the time; there were no exceptional circumstances to delay or reserve costs despite the applicant being legally aided, and therefore the applicant was entitled to an award of costs against the interested parties in the sum of $4,643.59.
Source-derived case information.
- Citation
- [2021] NZHC 2416
- Parties
- Applicant: Latika Devi Sen; Respondent: Public Trust as trustee and executor of the Estate of Colin Russell Friend; Interested Party: Michael Allan Friend; Interested Party: Judith Leigh Friend
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 14 September 2021
- Procedural Posture
- Civil (probate/estate; Costs) / Interlocutory (costs Application Following Discovery/privilege Ruling)
- Outcome
- Costs awarded to applicant against interested parties
- Legal Topics
- Privilege, Interlocutory Costs, Legal Aid Implications, Discovery
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Latika Devi Sen
Applicant
Public Trust as trustee and executor of the Estate of Colin Russell Friend
Respondent
Michael Allan Friend
Interested Party
Judith Leigh Friend
Interested Party
Procedural Posture
Civil (probate/estate; Costs) / Interlocutory (costs Application Following Discovery/privilege Ruling)
Legal Issues
- 1 Whether applicant was entitled to costs for a successful interlocutory challenge to a claim of privilege
- 2 Whether costs should be awarded immediately given the applicant is legally aided
- 3 Whether exceptional circumstances existed to depart from the usual rule that interlocutory costs are dealt with at the time
Ratio Decidendi
The court held that ordinary rules require interlocutory costs to be decided at the time; there were no exceptional circumstances to delay or reserve costs despite the applicant being legally aided, and therefore the applicant was entitled to an award of costs against the interested parties in the sum of $4,643.59.
Court Disposition
Costs awarded to applicant against interested parties
Orders
- Costs on a 2B basis in the sum of $4,643.59 awarded to the applicant against the interested parties
Full Case Text
Judgment text and source record
1 paragraphs
SEN v PUBLIC TRUST [2021] NZHC 2416 [14 September 2021]IN THE HIGH COURT OF NEW ZEALANDNELSON REGISTRYI TE KŌTI MATUA O AOTEAROAWHAKATŪ ROHECIV-2019-442-48[2021] NZHC 2416BETWEEN LATIKA DEVI SENApplicantAND PUBLIC TRUST as trustee and executor ofthe Estate of Colin Russell FriendRespondentMICHAEL ALLAN FRIEND andJUDITH LEIGH FRIENDInterested PartiesHearing: On the PapersAppearances: L S B Acland for applicantNo appearance by or for respondentB J Bellamy for interested partiesJudgment: 14 September 2021JUDGMENT OF ASSOCIATE JUDGE JOHNSTON[Costs][1] In my judgment dated 21 July 2021 I upheld the plaintiff's challenge to a claimto privilege in respect of certain documentation by the interested parties in the contextof discovery. I concluded by determining that the plaintiff was entitled to her costs inrelation to this interlocutory application on a 2B basis, notwithstanding that it hadturned out that there was only one substantive document involved. The view Iexpressed was that if the plaintiff's challenge had been handled differently by theinterested parties the application would have been unnecessary.[2] The applicant now seeks costs. On her behalf, Mr Acland calculates costs ona 2B basis at $7,648 but informs the Court that her actual costs are only $4,643.59. Ofcourse, the plaintiff can claim no more than the latter figure.[3] For the interested parties, Mr Bellamy does not dispute the costs figure. Theonly issue he raises is whether the costs award should be made at this stage. He notesthat the plaintiff is legally aided and that she is not therefore exposed to costs orders(which is true, except in the most extreme cases). He says — quite rightly — that thelitigation still has "a number of phases to run through". There is currently anoutstanding interlocutory matter and there may well be other issues that arise beforethe hearing in late May 2022. The essential point Mr Bellamy emphasises is thatbecause the applicant is legally aided she is not exposed in the same way as theinterested parties are to costs awards and that interlocutory awards in her favour mayultimately operate unfairly if she were to be successful at trial.[4] As I see it that is simply a consequence of the legal aid regime, and the Courtmust nevertheless apply the usual rules which are that costs on interlocutory steps aredealt with at the time rather than becoming costs in the cause which is effectively whatMr Bellamy contends for.[5] Accordingly, the view I take is that there are no exceptional circumstanceswhich would take this case outside of the scope of the usual rules.[6] On that basis, I make a costs award in favour of the plaintiff against theinterested parties in the sum of $4,643.59.Associate Judge JohnstonSolicitors:Rout Milner Fitchett, Nelson for applicantPublic Trust, Christchurch for defendantStallard Law Ltd, Nelson for interested parties