Salih v Almarzooqi [2024] NZCA 124 (22 April 2024)

Last Updated: 29 April 2024

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA309/2022 [2024] NZCA 124

	BETWEEN	RAFID MOHAMMED SALIH Appellant
	AND	RAHLA HUSSEIN AMIN HARDER ALMARZOOQI Respondent

Court:	Courtney, Thomas and Collins JJ
Counsel:	P W Michalik and M V Smith for Appellant J L W Wass and M Freeman for Respondent
Judgment:	22 April 2024 at 9.30 am

JUDGMENT OF THE COURT (COSTS)

Costs are reserved until final disposition of the proceedings.
____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

• [1] In the substantive judgment in this matter delivered on 14 December 2023 the Court declined to make any order as to costs on the basis that, although Mr Salih had been the successful party on the appeal and would normally be entitled to a costs order, the Court had understood that Ms Almarzooqi was legally aided. However, Ms Almarzooqi’s legal aid status was subsequently clarified in a memorandum from her counsel which explained that, while Ms Almarzooqi had been legally aided in the High Court she had not sought and was not granted legal aid for the appeal. As a result, the judgment was recalled and reissued with the decision as to costs being that the issue could be addressed by memoranda.^[1]
• [2] Counsel for Mr Salih and Ms Almarzooqi filed separate memoranda on the issue of costs. Essentially, Mr Salih seeks to have costs paid on the basis of the Court’s initial indication that he should be treated as the successful party.
• [3] Ms Almarzooqi invites us to let costs lie where they fall or, alternatively, be reserved until the final disposition of the proceedings because:

(a) Although Ms Almarzooqi did not prevail at the appeal, she should not be treated as an unsuccessful party for costs purposes given that the case remains live following its remittal to the High Court and, further, that Mr Salih failed in relation to a number of arguments raised for the first time in this Court.

(b) The case has public interest and benefit beyond the parties.

(c) Ms Almarzooqi is eligible for legal aid and has been in receipt of legal aid throughout, save for: a point early in the proceeding (as a result of a representation made by Mr Salih’s counsel to the Legal Services Agency); the application for leave to appeal to the Supreme Court in respect of her unsuccessful summary judgment application, for which she was represented on a pro bono basis; and the current appeal, for which she was also represented on a pro bono basis. Her lack of legal aid in respect of the current appeal reflected the fact that neither of her counsel — Mr Freeman and Mr Wass — had permanent Court of Appeal or Supreme Court provider status for legal aid purposes. Nevertheless, Ms Almarzooqi continues to have a legal aid grant in the High Court.

Result

• [4] We are persuaded that the circumstances outlined in Ms Almarzooqi’s costs memorandum mean that it would not be appropriate to make a costs award at this point. We consider that costs should be reserved until final disposition of the proceedings and order accordingly.

Solicitors:
Michael Smith Barrister and Solicitor, Wellington for Appellant
Thomas Dewar Sziranyi Letts, Lower Hutt for Respondent

---

^[1] Salih v Almarzooqi [2023] NZCA 645, [2023] NZFLR 560 at [116].