BROWN v AKULININ - Costs [2020] NZHC 1519

BROWN v AKULININ - Costs [2020] NZHC 1519 [1 July 2020]NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B,11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHERINFORMATION, PLEASE SEEhttps://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2019-404-2384[2020] NZHC 1519UNDER the Property (Relationships) Act 1976IN THE MATTER of an appeal from a decision of the FamilyCourt at Auckland on 25 September 2019BETWEEN NATALIA ALEXANDROVNA BROWNAppellantAND OLEG FATEEVICH AKULININRespondentHearing: On the papersCounsel: J M Gandy for the appellantB D Hayes for the respondentJudgment: 1 July 2020JUDGMENT OF JAGOSE J[Costs]This judgment was delivered by me on 1 July 2020 at 2.00pm.Pursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarCounsel/Solicitors:B D Hayes Barrister, AucklandThomas & Co, Auckland[1] My 20 May 2020 judgment took the preliminary view Natalia, as the successfulparty, was entitled to 2B costs. If that was not accepted by the parties, and could nototherwise be agreed between them, costs were reserved.1[2] Natalia seeks 2B costs and disbursements totalling $15,028.10. As an aidedperson receiving legal aid for civil proceedings, Oleg generally is immune fromliability for any order for costs in the proceeding.2 Such liability in any event: must not exceed an amount (if any) that is reasonable for the aided personto pay having regard to all the circumstances, including the means of all theparties and their conduct in connection with the dispute.[3] No order for costs may be made against Oleg unless I am satisfied there areexceptional circumstances. In determining if there are exceptional circumstances Imay take account also of unnecessary, non-compliant, misleading or deceitful,unreasonable or otherwise abusive conduct by him. Any order for costs against Olegmust specify the amount he would otherwise have been ordered to pay. If no order forcosts is made, an order may be made specifying what costs would have been orderedhad his liability not been affected by the above.[4] Apart from the grant of legal aid to Oleg, I know nothing of Natalia's or Oleg'smeans, particularly given the "evidential deficiencies" in the substantive case; neithercan I identify anything in their conduct with material bearing on the issue of costs.Although Natalia argues the Judge's error "should have been abundantly clear", Olegnonetheless had the benefit of the Judge's finding, which Natalia needed to overturn.She cannot do that by consent, even if it had been forthcoming. Oleg's conduct asrespondent in the appeal was not 'exceptional' such as may render him liable to a costsorder; he made sensible concessions, but pressed arguments that remained available.The belated grant of legal aid to Oleg nonetheless is retrospective.3[5] Without exceptional circumstances, I therefore do not make any costs orderagainst Oleg.1 Brown v Akulinin [2020] NZHC 1061 at [24]–[25].2 Legal Services Act 2011, s 45; see Laverty v Para Franchising Ltd [2006] 1 NZLR 650 (CA).3 Carter v Western Viaduct Marine Ltd (2003) 16 PRNZ 1034 (HC) at [25].[6] I order, but for Oleg's immunity, I would have ordered he was liable to payNatalia 2B costs of $14,430, and disbursements of $598.10.—Jagose J