T M PURU V J T PURU AND ANOR HC AK CIV 2007-404-003881

T M PURU V J T PURU AND ANOR HC AK CIV 2007-404-003881 5 February 2009IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2007-404-003881IN THE MATTER OF the Estate of Charlotte Hannah Trevarthen BETWEEN TUINI MIHIMA PURU Plaintiff AND JEANINE TANIA PURU First Defendant AND MAURETANIA CAROLINA PURU Second Defendant Hearing: (On the papers) Appearances: H Fulton for the Plaintiff S Abdale for the First Defendant No appearance for the Second Defendant Judgment: 5 February 2009 at 3:00pmCOSTS JUDGMENT OF WYLIE JThis judgment was delivered by Justice Wylie on 5 February 2009 at 3.00pm pursuant to r 540(4) of the High Court Rules Registrar/Deputy Registrar Date: Solicitors/Counsel: Barry & Co, P O Box 47 200, Ponsonby, Auckland Tetley-Jones Thom Sexton, P O Box 111, Auckland H Fulton, P O Box 5577, Wellesley Street, Auckland 1141 S Abdale, P O Box 46 281, Auckland[1] In my substantive judgment in relation to this matter dated 5 November 2008, I noted that the plaintiff as the successful party was entitled to costs. I gave directions as to the process to be followed in the event that she wished to seek the same. [2] I have received a memorandum from Mr Fulton on behalf of the plaintiff seeking costs. The memorandum is dated 27 November 2008 and it was filed with the Registry on the following day. The memorandum does not seek costs against the first defendant. The first defendant has apparently advised the plaintiff that she is in receipt of legal aid. The plaintiff does not suggest that there any are exceptional circumstances, and she accepts that under s 40(2) of the Legal Services Act 2000 ("the Act"), no order for costs should be made against the first defendant. The plaintiff however seeks an order under s 40(5) of the Act. [3] An email was sent by the Registry to the first defendant's solicitor on 28 November 2008 seeking a reply. No reply was received and the plaintiff's application was placed before me on 17 December 2008. [4] I note the plaintiff seeks an order under s 40(5) of the Act. It provides as follows:(5) If, because of this section, no order for costs is made against the aided person, an order may be made specifying what order for costs would have been made against that person with respect to the proceedings if this section had not affected that person's liability.[5] The plaintiff seeks an order that it would have been entitled to costs on a 2B basis in relation to the substantive proceedings, and also in relation to the necessary preliminary proceedings – CIV 2006-404-001841 (the judgment of Rodney Hansen J dated 20 February 2007 referred to in my judgment at [18]), and CIV 2006-404- 002491 (the ex parte application for an order nisi for grant of administration, dealt with by Andrews J, and referred to in my judgment at [17]).[6] I am satisfied that such an order is appropriate, and accordingly order as follows: a) No order for cost is made against the first defendant. b) Pursuant to s 40(5) of the Legal Services Act 2000, an order is made specifying the order for costs that would have been made against the first defendant if s 40(2) had not affected her liability. The order for costs would have been assessed on a category 2B basis in proceedings CIV 2006-404-001841, CIV 2006-404-002491, and CIV 2007-404- 003881. The plaintiff would also have been entitled to her reasonable disbursements and expenses in each case. c) Leave is reserved to the plaintiff to come back to the Court in the event there is any difficulty in relation to this order. Wylie J