New Zealand Case Law: Decisions & Judgments

Topic

Section 45 legal services act 2011

Legal area

Court

25 Mar 2022

JINDAL v JARDEN SECURITIES LIMITED [2022] NZHC 572

Citation

[2022] NZHC 572
Court

High Court

The High Court found the Judge erred by failing to address the mandatory consideration whether to adopt the usual forward‑looking approach to security for costs (there being no exceptional circumstances to depart from it), thereby fixing an excessive quantum; the correct approach was forward‑looking with credit for the prior $4,000 payment, and the amended security was set at $1,200 (in addition to the earlier $4,000), with the balance of amounts paid to be returned to the appellant.
11 May 2021

SCOTT v GARNHAM [2021] NZHC 1039

Citation

[2021] NZHC 1039
Court

High Court

The court exercised its discretion to direct that the estate should not meet the appellant's costs and, applying s45 Legal Services Act 2011, found no exceptional circumstances (despite unfounded allegations and rejected settlement offers) that would justify an order for costs against the aided appellant; accordingly no costs were ordered against the appellant.
2 Sept 2020

TONISE v WOODROFFE LAW PARTNERSHIP [2020] NZHC 2277

Citation

[2020] NZHC 2277
Court

High Court

No order for costs was made because the Court was not satisfied there were exceptional circumstances under s45 Legal Services Act 2011; the appellant did not unreasonably pursue the appeal, conflicting authority made the point arguable, the settlement offer was too late to be decisive, and allegations of misleading conduct were not established. The Court nevertheless declared that, if s45 had not applied, it would have awarded 2B costs totalling $10,157.50 to the respondent under s45(5).
24 Jun 2020

NGATI TAMA CUSTODIAN TRUSTEE LIMITED v PHILLIPS [2020] NZCA 252

Citation

(2020) 25 PRNZ 465
Court

Court of Appeal

The Court of Appeal held that the conduct in this Court (notably adjournment due to counsel withdrawal and an attempted late affidavit filing) did not meet the high threshold of "exceptional circumstances" under s 45 of the Legal Services Act 2011; although the indemnity clause in the settlement deed is relevant it is not decisive; accordingly no costs were awarded in the Court of Appeal and the earlier CA costs order was recalled and set aside; High Court costs are to be determined by the High Court.
14 Mar 2019

COMMISSIONER OF POLICE v CHEAH [2019] NZHC 455

Citation

[2019] NZHC 455
Court

High Court

The court declined to order costs against the legally aided respondent because the Commissioner failed to establish exceptional circumstances under s 45; the respondent was not shown to have acted unreasonably or to have a present entitlement to overseas funds; however, had s 45 not applied the respondent would have been liable for costs of $18,397.50.
15 Mar 2016

BRUCE BRENDON VAN ESSEN v THE ATTORNEY-GENERAL [2016] NZSC 23

Citation

[2016] NZSC 23
Court

Supreme Court

A s 45(5) certificate may be issued specifying the costs that would have been ordered if s 45(2) had not applied; the court certified that absent s 45(2) the applicants would have been ordered to pay the second and third respondents jointly costs of $2,500.
24 Dec 2012

AB V THE ATTORNEY-GENERAL HC WN CIV-2006-485-2304

Citation

openlaw-2f26b9c2_851d_4ff4_bfe5_97db0262ad4a.pdf
Court

High Court

The Court will exercise its discretion under s 45(5) to specify the costs the plaintiff would have been ordered to pay absent legal aid; in this case the appropriate specification is scale 2B costs less 10 percent (to reflect some defendant responsibility), plus disbursements, with certification for second counsel and allowance for Crown witness expenses; increased costs were not justified and s 45(3) does not inform the s 45(5) discretion.

New Zealand Case Law

JINDAL v JARDEN SECURITIES LIMITED [2022] NZHC 572

SCOTT v GARNHAM [2021] NZHC 1039

TONISE v WOODROFFE LAW PARTNERSHIP [2020] NZHC 2277

NGATI TAMA CUSTODIAN TRUSTEE LIMITED v PHILLIPS [2020] NZCA 252

COMMISSIONER OF POLICE v CHEAH [2019] NZHC 455

BRUCE BRENDON VAN ESSEN v THE ATTORNEY-GENERAL [2016] NZSC 23

AB V THE ATTORNEY-GENERAL HC WN CIV-2006-485-2304