AAL Holdings Limited v Aitken

[2022] NZHC 3290

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-2280

[2022] NZHC 3290

UNDER

Section 339 of the Property Law Act 2007

BETWEEN

AAL HOLDINGS LIMITED

Plaintiff

AND

PETER JOHN AITKEN and PETER LOUIS FELSTEAD

First defendants

AND

121 LIMITED

Second defendant

AND

JUSTITIAE TRUSTEE COMPANY LIMITED

Third defendant (discontinued)

AND

XIAOLI DAI

Fourth defendant

Hearing:

On the papers

Appearances:

D J Chisholm KC and MJW Lenihan for plaintiff AJB Holmes and A J Steel for first defendants

M G Locke and RVM Allen for second defendant

Third defendant excused from attendance on discontinuance S E Wroe for fourth defendant

Date of judgment:

8 December 2022

JUDGMENT OF JAGOSE J

[Costs]

This judgment was delivered by me on 8 December 2022 at 2.00pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

AAL HOLDINGS LTD v AITKEN – Costs [2022] NZHC 3290 [8 December 2022]

[1]        My 14 November 2022 judgment determined the property at issue should be divided in kind among its co-owners on agreed terms.1 As to costs, I said:2

Any application for costs must take into account the agreement specified at para 3 of the parties’ joint memorandum dated 7 November 2022. In my preliminary view, from what I presently know, only AAL’s costs of steps in the hearing plus a proportionate share of costs of other steps in the proceeding may be recoverable from 121 Ltd as the unsuccessful party: all at 2B in this averagely complex proceeding requiring counsel of average skill and experience, and in which a normal amount of time is considered reasonable for each step. Given AAL required this Court’s order to obtain division, it may be costs in the proceeding are calculated also by reference to 121 Ltd’s 10 per cent share in the property, uplifted to 50 per cent for costs of the hearing to reflect its singular opposition to the otherwise agreed resolution.

If my view is not accepted by the parties, or they cannot otherwise agree, I reserve costs for determination on short memoranda each of no more than five pages — annexing a single-page table setting out any contended allowable steps, time allocation and daily recovery rate — to be filed and served by AAL within ten working days of the date of this judgment, with any response or reply to be filed within five working day intervals after service.

[2]        The parties not agreeing with my preliminary view, or with each other, by memoranda of 28 November 2022:

(a)AAL seeks 25 per cent of scale costs and disbursements heading up to preparation for the hearing, plus 100 per cent of scale costs from preparation for the hearing onward (uplifted by 50 per cent as increased costs for 121 Ltd’s contributions), totalling costs of $27,903.25 and disbursements of $21,915.17; and

(b)the fourth defendant seeks 121 Ltd pay the costs of her expert’s attendance at trial, as such attendance was required by 121 Ltd, amounting to $1,092.50.

1      AAL Holdings Ltd v Aitken [2022] NZHC 2973 at [26].

2      At [29]–[30].

[3]        No timely response was filed by 121 Ltd. Notwithstanding my preliminary view, I am satisfied the sums appropriately are claimed, and order accordingly.

—Jagose J

Counsel/Solicitors:

D J Chisholm KC, Auckland

MJW Lenihan, Barrister, Auckland AJB Holmes, Barrister, Auckland A J Steel, Barrister, Auckland

M G Locke, Barrister, Auckland S E Wroe, Barrister, Auckland Pidgeon Judd, Auckland

Brown Partners, Auckland

Richard Allen Law, Auckland