AJD v SED

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-003714 [2014] NZHC 18

UNDER Section 91 of the Domestic Violence Act
1995

IN THE MATTER OF an appeal from the decision of the North
Shore Family Court

BETWEEN AJD Appellant

ANDSED Respondent

Hearing: (On the papers) Appearances: N Taefi for Appellant
Respondent in Person

Judgment: 28 January 2014

COSTS JUDGMENT OF VENNING J

This judgment was delivered by me on 28 January 2014 at 4.30 pm, pursuant to Rule 11.5 of the High
Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Rhonda G Evans, Auckland
Copy to: N Taefi, Auckland
Respondent

AJD v SED [2014] NZHC 18 [28 January 2014]

[1] In a judgment delivered on 28 November 2013 the Court dismissed the appellant’s appeal against a decision of the Family Court making a final protection order in the respondent’s favour.

[2] The respondent represented herself but now seeks costs. She seeks the costs charged by a barrister who gave her legal advice in relation to the appeal. She also says the case took up a lot of her time and caused a great deal of stress and anguish. She therefore seeks costs in total of $4,000. (I infer that includes the barrister’s fee of $1,035.00 including GST).

[3] The unsuccessful appellant, through counsel, opposes the application for costs, noting that the general rule is self represented persons are not entitled to recover costs and that, in accordance with the decision of Hutt City Council v Lower Hutt District Court,1 legal advice incurred by a self represented party does not fit within the scheme of costs provided for in the High Court Rules.

[4] I decline the application by the respondent for costs in this case. I do so for the following reasons:

(a) There is no reason to depart from the established rule that generally self represented litigants are not entitled to recover costs for time and trouble: Re Collier (A Bankrupt); Commissioner of Inland Revenue v Chesterfields Preschools Ltd (No 1).2

(b)(i) As for the general costs incurred by the respondent in seeking advice from the barrister, while awards of costs are discretionary the discretion is not unfettered and must be exercised judicially: Manukau Golf Club Inc v Shoye Venture
Ltd.3 The discretion is qualified by the costs rules.

1      Hutt City Council v Lower Hutt District Court [2013] NZHC 1581.
2      Re Collier (A Bankrupt) [1996] 2 NZLR 438; Commissioner of Inland Revenue v Chesterfields
Preschools Ltd (No 1) [2010] NZCA 400 at [162].
3      Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [7].

(ii)The concept underlying the costs regime in the High Court is to provide for a reasonable recovery of solicitor/client (including counsel) costs where parties are represented by solicitors/counsel in Court proceedings. The respondent was not so represented. No solicitor entered on record for her.

(iii)The costs regime in the High Court Rules provides for steps taken by solicitor and counsel in the proceeding. There were no steps taken by solicitor or counsel on behalf of the respondent in this proceeding.

(iv)In the circumstances the costs incurred of the legal advice falls more in the nature of disbursements but does not fit within the category of disbursements provided for in r 14.12.

[5] For the above reasons I do not consider the respondent is entitled to costs. The application for costs is dismissed.

Venning J

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, the case of AJD v SED [2014] NZHC 18 was heard. The appellant, AJD, sought to appeal a decision of the North Shore Family Court, which had made a final protection order in favour of the respondent, SED. The appeal was dismissed by the Court on 28 November 2013. SED, who represented herself in the appeal, now seeks costs for the legal advice she obtained from a barrister, as well as costs for the time and stress incurred during the proceedings. The appellant, through counsel, opposes the application for costs, citing the general rule that self-represented litigants are not entitled to recover costs, as established in previous cases such as Hutt City Council v Lower Hutt District Court and Re Collier (A Bankrupt).

The legal issues before the court were whether SED was entitled to recover costs for the legal advice she obtained from the barrister and whether she was entitled to costs for the time and stress incurred during the proceedings. The court considered the established rule that self-represented litigants are generally not entitled to recover costs, as well as the discretionary nature of awarding costs and the specific provisions of the High Court Rules. The court noted that the costs regime in the High Court Rules provides for a reasonable recovery of solicitor/client costs where parties are represented by solicitors/counsel in court proceedings. However, SED was not represented by a solicitor or counsel in this proceeding, and the costs incurred for legal advice did not fit within the category of disbursements provided for in the rules.

The court declined SED's application for costs, stating that there was no reason to depart from the established rule that self-represented litigants are not entitled to recover costs for time and trouble. The court also noted that the costs incurred for legal advice fell more in the nature of disbursements but did not fit within the category of disbursements provided for in the rules. The application for costs was dismissed, and SED was not entitled to recover the costs she sought.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established