New Zealand Case Law: Decisions & Judgments

Topic

Legal services act 2000 s40

Legal area

Court

13 Apr 2010

BURMEISTER V O'BRIEN AND ORS HC TAU CIV-2005-470-396

Citation

openlaw-c02c320f_ee38_49bf_af33_be2545a03e42.pdf
Court

High Court

Because the plaintiffs had extremely modest means and any payment would have real impact, the court declined to order payment of the $2,050 legal aid contribution under s40(1); however under s40(3) the court certified the amounts that would have been ordered absent legal aid: $54,005.62 in favour of the fourth defendant and $53,865.39 in favour of the fifth defendant.
21 Aug 2009

S V I HC HAM CIV 2009-419-139

Citation

openlaw-6a07d247_af8f_408e_86ba_a4b2c8be7e0b.pdf
Court

High Court

The High Court allowed the appeal, set aside the Family Court costs order and held that, in light of the substantive appellate findings by Keane J which undermined key factual bases relied on by the Family Court judge, the threshold of 'exceptional circumstances' under s40 Legal Services Act 2000 was not established; accordingly there was no jurisdiction to make the s40(5) costs specification and no order for costs in the Family Court.
23 Feb 2009

HAKEKE JACKIE MCGARVEY V HINA TEMO CA CA315/2007

Citation

openlaw-cf4086b0_387a_4e0c_88a2_16ceb16ac88d.pdf
Court

Court of Appeal

The Court held there were no exceptional circumstances under s40(2) because the appellant's pursuit of the appeal was not unreasonable given novel aspects, some lack of clarity in the respondent's evidence about execution of the will, and technical statutory issues; accordingly the application for costs was declined but under s40(5) the court specified hypothetical costs of $9,600 plus usual disbursements.
7 Apr 2008

BURMEISTER & ANOR V O'BRIEN AND ORS HC TAU CIV 2005-470-396

Citation

openlaw-8e6676b9_3f96_4bec_b7b0_b5afce53c615.pdf
Court

High Court

The Court ordered Harding & Associates Limited to give non-party discovery under r302 because an order was necessary; however s40 of the Legal Services Act 2000 protects legally aided applicants from being ordered to pay the non-party's expenses, costs or disbursements unless exceptional circumstances are shown, and no such application was made, so Harding & Associates cannot recover its expenses under r303 absent exceptional circumstances; Harding & Associates was given 20 working days to comply and may assert privilege or confidentiality by affidavit with possible in-camera inspection under…
16 Sept 2005

LYONS V THE ATTORNEY-GENERAL AND ORS HC WN CIV-2003-485-1534

Citation

openlaw-596455fb_1e62_4c3b_bd64_f344d9cce50d.pdf
Court

High Court

Because the plaintiff was an aided person and the third defendant did not establish 'exceptional circumstances' under s40(2), the plaintiff's liability for costs is limited to her $50 legal aid contribution; the court certifies under s40(4) that, absent legal aid, it would have ordered costs for the third defendant on a category 2 band B basis.

New Zealand Case Law

BURMEISTER V O'BRIEN AND ORS HC TAU CIV-2005-470-396

S V I HC HAM CIV 2009-419-139

HAKEKE JACKIE MCGARVEY V HINA TEMO CA CA315/2007

BURMEISTER & ANOR V O'BRIEN AND ORS HC TAU CIV 2005-470-396

LYONS V THE ATTORNEY-GENERAL AND ORS HC WN CIV-2003-485-1534