IN THE MĀORI LAND COURT OF NEW ZEALAND WAIKATO MANIAPOTO DISTRICT A A BRIAN LINDSAY APPLETON Applicant

Transcription

1 176 Waikato Maniapoto MB 115 IN THE MĀORI LAND COURT OF NEW ZEALAND WAIKATO MANIAPOTO DISTRICT A A UNDER Section 79, Te Ture Whenua Māori Act 1993 IN THE MATTER OF BETWEEN AND Whangamata 4D 1C 1B Block BRIAN LINDSAY APPLETON Applicant ALAINA KRISSANSEN Respondent Hearing: 20 July 2018, 167 Waikato Maniapoto MB (Heard at Hamilton) Appearances: B Wong for Applicant C Hockly for Respondent Judgment: 28 February 2019 JUDGMENT OF JUDGE S TE A MILROY Copies to: B Wong, P O Box 981, Hamilton, ben@jefferieslaw.co.nz C Hockly, P O Box 59211, Auckland, cameron@hockly.co.nz

2 176 Waikato Maniapoto MB 116 Introduction [1] On 20 July 2018, I dismissed two applications filed by the applicant relating to the ownership of and succession to a dwelling located on Whangamata 4D 1C 1B block. 1 [2] Following this decision, counsel for the respondent, Mr Hockly, filed submissions as to costs. Unfortunately, these submissions were not referred for my consideration in an expeditious manner, and in the meantime I issued orders for payment of Mr Hockly s legal fees from the Māori Land Court Special Aid Fund pursuant to s 98 of Te Ture Whenua Māori Act [3] I must now determine whether costs should be awarded and, if so, at what amount. Respondent s submissions [4] Mr Hockly, on behalf of the respondent, noted the general principle that costs should follow the event. He submitted that costs were justified in this case as the applicant was unsuccessful in all elements of the application. [5] Counsel submitted as follows: (a) The application for succession had no chance of success as the Act clearly prevented succession by the spouse where the spouse had re-married. This should never have been part of the application and was in fact withdrawn one week before the hearing; (b) There was clear evidence to show that the applicant was responsible for the construction of the dwelling and the subsequent occupation orders. There was no evidence to suggest that there may have been a family arrangement or a legally enforceable agreement between the applicant and the respondent as to the costs of the construction or use of the dwelling; Waikato Maniapoto MB (167 WMN 18-59).

3 176 Waikato Maniapoto MB 117 (c) An award of costs by the Court would not have any meaningful impact on the amicability of the relationship between the parties as the relationship between the parties had deteriorated; (d) The majority of the proceedings were conducted in a manner akin to formal civil litigation with both parties represented by counsel. While the matter was not complex, the issues were important with a heavy and menacing potential result for the respondent; (e) The assertions made by the applicant were a gross misrepresentation of the facts and the sum the applicant sought was out of proportion to the amount spent on the construction of the dwelling. The applicant therefore lacked realism with regard to his chance of success; (f) Due to the approach of the applicant, care had to be taken to address all matters and this required significant time for preparation and presentation of the respondent s case; and (g) While the respondent was granted special aid through the Māori Land Court Special Aid Fund, this did not make an award of costs inappropriate nor was there any legislation that prevented an award of costs. [6] Mr Hockly submitted that a more liberal award should be considered because the application put forward by the applicant was hopeless or unmeritorious. [7] The costs sought by the respondent amount to $14, and are the full costs of the case. In other words, indemnity costs are sought against the applicant. In the alternative, if full or indemnity costs are not found to be appropriate, counsel submits that 80 per cent of the costs should be awarded as reasonable costs. The Law [8] Section 79(1) of the Act sets out the Court s jurisdiction as to costs: 79 Orders as to costs

4 176 Waikato Maniapoto MB 118 (1) In any proceedings, the court may make such order as it thinks just as to the payment of the costs of those proceedings, or of any proceedings or matters incidental or preliminary to them, by or to any person who is or was a party to those proceedings or to whom leave has been granted by the court to be heard. [9] The principles that govern an award of costs are well established. In Samuels v Matauri X Incorporation, the Māori Appellate Court summarised these principles as: 2 (a) (b) The Court has an absolute and unlimited discretion as to costs; Costs normally follow the event; (c) A successful party should be awarded a reasonable contribution to the costs that were actually and reasonably incurred; (d) The Māori Land Court has a role in facilitating amicable, ongoing relationships between parties involved together in land ownership, and these concerns may sometimes make awards of costs inappropriate. However, where litigation has been conducted similarly to litigation in the ordinary Courts, the same principles as to costs will apply; and (e) There is certainly no basis for departure from the ordinary rules where the proceedings were difficult and hard fought, and where the applicants succeeded in the face of serious and concerted opposition. [10] In determining the level of the award, the Court has a broad discretion and generally considers what is just in the circumstances and the conduct of the parities. 3 The Court must first determine whether costs should be awarded and if the answer is yes, then the level of costs that should be awarded must be assessed. [11] I adopt these principles. Discussion Should an award of costs be made in this case? [12] It is well established that costs normally follow the event and the successful party should be awarded a reasonable contribution to the costs that were actually and reasonably 2 Samuels v Matauri X Incorporation Matauri X Incorporation (2009) 7 Taitokerau Appellate MB 216 (7 APWH 216) at [8] [14]. 3 Samuels v Matauri X Incorporation Matauri X Incorporation (2009) 7 Taitokerau Appellate MB 216 (7 APWH 216) at [13]; See also De Loree v Mokomoko and others Hiwarau C (2008) 11 Waiariki Appellate MB 249 (11 AP 249).

5 176 Waikato Maniapoto MB 119 incurred. I acknowledge the weight of Mr Hockly s submissions but there are several countervailing considerations which I take into account in this decision, as follows: (a) Although the application for succession to a life tenancy was withdrawn only one week prior to hearing, it was always untenable, as respondent counsel would have known; (b) While the majority of the proceedings were conducted in a manner akin to ordinary civil proceedings it must be said that counsel for the applicant did not make any real submissions. In that sense, the proceedings were not hardfought; (c) While I agree that the applicant lacked realism in terms of what he sought, I was left wondering at the end of the proceedings whether he had received full and proper counsel from his lawyer. I am sorry to say that I consider the performance of the applicant s counsel to be poor; and (d) In this case there is already in existence a final order granting Mr Hockly s full legal costs of $14, to be paid from the Māori Land Court Special Aid Fund. Essentially, the respondent has already received payment in respect of the costs sought. [13] While the Court regrets the delay in the presentation of Mr Hockly s submissions, I do not consider it appropriate, nor is there any precedent to award costs against an unsuccessful applicant where counsel has already received payment of their full legal fees from the Māori Land Court Special Aid Fund. If I were to grant an order that costs be paid by the applicant, the respondent would be receiving a double award. There were no submissions from Mr Hockly on this point as to whether the costs already awarded from the Māori Land Court Special Aid Fund would be refunded to the Court. [14] It has also long been recognised that the Court has a role in facilitating amicable relationships between families. While the relationship between the applicant and the respondent deteriorated badly during the proceedings, this is a situation involving close familial relationships between a father and daughter. Mr Appleton did contribute to the

6 176 Waikato Maniapoto MB 120 building of the dwelling and will no longer have any benefit from it. If costs were also to be awarded against him, the relationship between the parties might never be healed. If there is any hope at all that an amicable relationship can be restored between the parties, then I would not wish to damage that possibility in any way. [15] I therefore conclude that in this case an award of costs is not appropriate. Decision [16] There will be no order as to costs. The application is now concluded. Pronounced in Hamilton at 3.20 pm on Thursday this 28th day of February S Te A Milroy JUDGE