Alkazaz v Deloitte Limited

[2023] NZHC 2540

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-002070

[2023] NZHC 2540

BETWEEN

AHMED ALKAZAZ

Plaintiff

AND

DELOITTE LIMITED

Defendant

CAREY WONG
Second Defendant

MICHAEL ENDERBY

Third Defendant

Hearing:

On the papers

Appearances:

Plaintiff in Person

S Armstrong / R J Gordon for the Defendants

Judgment:

12 September 2023

COSTS JUDGMENT OF ASSOCIATE JUDGE GARDINER

This judgment was delivered by me on 12 September 2023 at 11.30 a.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date.......................................

Solicitors:

Minter Ellison, Auckland

ALKAZAZ v DELOITTE LTD [2023] NZHC 2540 [12 September 2023]

[1]                 The defendants applied to strike out Ahmed AlKazaz’s statement of claim in which he alleged that they made defamatory statements about him in April 2018 and at other unspecified times.

[2]                 In a judgment delivered on 26 June 2023, I found for the defendants and struck out Mr AlKazaz’s statement of claim.1 I indicated that, consistent with the general principle that the party who  fails  should  pay  costs  to  the  party  who  succeeds, Mr AlKazaz should pay the defendants’ costs on a scale 2B basis, and reasonable disbursements.

[3]                 The defendants have filed a memorandum seeking 2B costs of $11,950 and disbursements of $478.26. They submit that this is a straightforward case where costs should follow the event, and that there are no exceptional circumstances warranting departure from this general principle.

[4]                 Mr AlKazaz has filed a memorandum, referring to his appeal against the judgment with the Court of Appeal, and asking that costs not be determined until his appeal is determined. Failing that, he asked the Court to strike out any excessive costs and/or disbursements claimed by the defendants.

[5]                 The principles governing the exercise of the court’s discretion are well established. Although costs are at the discretion of the court2 the discretion is not unfettered. The court’s discretion is qualified by the specific rules at rr 14.2–14.17 of the High Court Rules 2016. There is a strong implication that the court is to apply the costs regime in the absence of some reason to the contrary.3 Any departure must be a considered and particularised exercise of the court’s discretion.4

[6]                 A fundamental principle applying to the determination of costs is that costs follow the event.5 This means that the party who fails with respect to a proceeding or interlocutory application should pay costs to the party who succeeds.6 A further

1      Alkazaz v Deloitte Ltd [2023] NZHC 1592.

2      High Court Rules 2016, r 14.1.

3      Manukau Gold Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [7].

4      Glaister v Amalgamated Dairies Ltd [2004] 2 NZLR 606 (CA) at [21]–[24] and [28].

5      Manukau Gold Club Inc v Shoye Venture Ltd, above n 3, at [8].

6      High Court Rules 2016, r 14.2(1)(a).

principle is that the determination of costs should be predictable and expeditious.7 Costs should be determined promptly, so the entitled party recovers their litigation costs in the minimum time. I have not been presented with any proper basis to depart from these principles. Therefore I refuse to postpone determining costs on the strike-out judgment until after Mr AlKazaz’s appeal is determined. If Mr AlKazaz wishes to pursue an application for a stay of execution of the costs order (once made), a formal application is required.8

[7]                 However, there is merit in some of Mr AlKazaz’s objections to the costs claimed by the defendants. I am of the view that the defendants should not be paid costs for items 10 (preparation for the first list call) and 11 (filing a joint memorandum for the first list call), as the items are essentially the same. Furthermore, the memoranda filed on 23 February 2023, 2 May 2023 and 31 May 2023 were relatively simple, and an allocation of 0.2 days for each is more appropriate.

[8]                 Accordingly, I order Mr Alkazaz to pay the defendants’ costs of $9,560, and disbursements of $478.26.

Associate Judge Gardiner

7      High Court Rules 2016, r 14.2(1)(g).

8      Court of Appeal (Civil) Rules 2005, r 12.