Alkazaz v Deloitte Limited

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.

CaseChat Overview and Summary

In the case of Alkazaz v Deloitte Limited, the plaintiff, Ahmed Alkazaz, sought to hold the defendants, Deloitte Limited, Carey Wong, and Michael Enderby, liable for defamatory statements made about him in April 2018 and at other unspecified times. The defendants applied to strike out Mr Alkazaz's statement of claim, which was subsequently struck out by the Court in a judgment delivered on 26 June 2023. The defendants have now filed a memorandum seeking 2B costs of $11,950 and disbursements of $478.26, arguing that costs should follow the event and that there are no exceptional circumstances warranting a departure from this general principle. In response, Mr Alkazaz has filed a memorandum referring to his appeal against the judgment with the Court of Appeal, 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.

The court considered the principles governing the exercise of its discretion in determining costs, noting that although costs are at the discretion of the court, 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, and there is a strong implication that the court is to apply the costs regime in the absence of some reason to the contrary. Any departure must be a considered and particularised exercise of the court's discretion. The court also noted that a fundamental principle applying to the determination of costs is that costs follow the event, meaning that the party who fails with respect to a proceeding or interlocutory application should pay costs to the party who succeeds. The court refused to postpone determining costs on the strike-out judgment until after Mr Alkazaz's appeal is determined, stating that if Mr Alkazaz wishes to pursue an application for a stay of execution of the costs order (once made), a formal application is required. However, the court did find merit in some of Mr Alkazaz's objections to the costs claimed by the defendants. The court was 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.

The court ordered Mr Alkazaz to pay the defendants' costs of $9,560, and disbursements of $478.26. The court's decision was based on the well-established principles governing the exercise of the court's discretion, and the fundamental principle that costs follow the event. The court also noted that the determination of costs should be predictable and expeditious, and that costs should be determined promptly so the entitled party recovers their litigation costs in the minimum time. The court found that there was no proper basis to depart from these principles, and therefore refused to postpone determining costs on the strike-out judgment until after Mr Alkazaz's appeal is determined.

Associate Judge Gardiner ordered that Mr Alkazaz pay the defendants’ costs of $9,560, and disbursements of $478.26.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established