NGATI TAMA CUSTODIAN TRUSTEE LIMITED v PHILLIPS [2020] NZCA 34
The court recalled the prior costs award because the respondent was legally aided and section 45(2) of the Legal Services Act 2011 requires the court to be satisfied that exceptional circumstances exist before making a costs order against an aided person; the court ordered submissions on whether exceptional...
Source-derived case information.
- Citation
- [2020] NZCA 34
- Parties
- Appellant: Ngati Tama Custodian Trustee Limited; Respondent: David William Phillips
- Court
- Court of Appeal
- Jurisdiction
- New Zealand
- Judgment Date
- 2 March 2020
- Procedural Posture
- Appeal (court of Appeal) / Costs Order Recalled for Reconsideration; Submissions Ordered
- Outcome
- Costs award recalled and remitted for reconsideration regarding exceptional circumstances under s45; parties ordered to file submissions within stated timeframes.
- Legal Topics
- Costs Orders, Legal Services Act 2011 S45, Exceptional Circumstances, Settlement Deed Clause 4.1
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ngati Tama Custodian Trustee Limited
Appellant
David William Phillips
Respondent
Procedural Posture
Appeal (court of Appeal) / Costs Order Recalled for Reconsideration; Submissions Ordered
Legal Issues
- 1 Whether a costs order may be made against a legally aided person under s45 of the Legal Services Act 2011
- 2 Whether any exceptional circumstances exist to permit costs against an aided person
- 3 Whether the claimed costs quantum needs substantiation at this stage
Ratio Decidendi
The court recalled the prior costs award because the respondent was legally aided and section 45(2) of the Legal Services Act 2011 requires the court to be satisfied that exceptional circumstances exist before making a costs order against an aided person; the court ordered submissions on whether exceptional circumstances are present.
Court Disposition
Costs award recalled and remitted for reconsideration regarding exceptional circumstances under s45; parties ordered to file submissions within stated timeframes.
Orders
- Order C and paragraph [76] of the judgment at [2019] NZCA 647 are recalled.
- Appellant to file submissions on whether exceptional circumstances justify a costs award within 10 working days of this judgment.
Full Case Text
Judgment text and source record
1 paragraphs
NGATI TAMA CUSTODIAN TRUSTEE LIMITED v PHILLIPS [2020] NZCA 34 [2 March 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA160/2018[2020] NZCA 34BETWEEN NGATI TAMA CUSTODIAN TRUSTEELIMITEDAppellantAND DAVID WILLIAM PHILLIPSRespondentHearing: 26 November 2018Court: Williams, Peters and Gendall JJCounsel: D M Hughes and L A Player-Bishop for AppellantP M Webb and A C McCormick for RespondentJudgment: 2 March 2020 at 4.00 pmJUDGMENT OF THE COURTOrder C and paragraph [76] of the judgment at [2019] NZCA 647 are recalled.The parties are to file submissions in accordance with paragraphs [5]–[6] of thisjudgment.____________________________________________________________________REASONS OF THE COURT(Given by Williams J)[1] In the judgment of this Court of 13 December 2019, we made a costs orderagainst the respondent in terms of cl 4.1 of the settlement deed.1 The appellant dulyprovided a schedule of costs which totalled the rather impressive sum of $371,436.711 Ngati Tama Custodian Trustee Ltd v Phillips [2019] NZCA 647.(including GST). The respondent filed a memorandum on 29 January 2020 seekingtwo things:(a) documentation substantiating the costs quantum; and(b) to remind the court that in fact the respondent was legally aided in theappeal.[2] This last-mentioned fact was not referred to in the judgment.[3] Section 45(2) of the Legal Services Act 2011 provides that "[n]o order for costsmay be made against an aided person in a civil proceeding unless the court is satisfiedthat there are exceptional circumstances". "Exceptional circumstances" are furtherparticularised in the inclusive list contained in subs (3).[4] Plainly, an order for an award of costs is not to be made without the enquiryrequired by section 45.[5] We therefore recall this Court's costs award made in the substantive judgment.2We seek submissions from the parties as to whether, and if so to what extent, anyexceptional circumstances justify an award of costs in this case. It is unnecessary tofurther address the question of substantiating documentation at this stage.[6] The appellant may file any submissions within 10 working days of thisjudgment. The respondent may respond within 10 further working days.Solicitors:Anthony Harper, Auckland for AppellantDenham Bramwell, Auckland for Respondent2 See Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC).