Bilkey v Kyriak - [2021] NZHC 599

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-1822

[2021] NZHC 599

BETWEEN ROBERT MACKENZIE BILKEY, LYNNETTE MARGARET BILKEY and HAURAKI TRUSTEE SERVICES (2008) LIMITED
Appellants

AND

MICHAEL THOMAS KYRIAK and CHRISTINA MOIRA JUDITH CIE

Respondents

Hearing: On the papers

Appearances:

W McCartney for Appellants Respondents in person

Judgment:

24 March 2021

JUDGMENT OF LANG J

[on costs]

This judgment was delivered by me on 24 March 2021 at 11 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

Solicitors:
Duncan King Law, Auckland
W McCartney, Barrister, Auckland
Copy to: Respondents

BILKEY v KYRIAK [2021] NZHC 599 [24 March 2021]

[1] On 25 February 2021 I delivered a judgment dismissing an appeal by Mr and Mrs Bilkey against an award of costs made in favour of Mr Kyriak and Ms Cie in the District Court.1 The parties have been unable to reach agreement regarding costs on the appeal. I am therefore required to determine that issue based on the memoranda both parties have filed.

The arguments

[2] In my judgment I recorded my tentative view that, as the successful parties on the appeal, Mr Kyriak and Ms Cie should receive costs on a Category 2 Band B basis together with disbursements as fixed by the Registrar. I indicated I would allow costs calculated at .5 of a day to reflect the fact that I had requested counsel to file memoranda after the hearing to address a particular issue.2

[3] Mr Kyriak and Ms Cie now seek costs on a Category 2B basis, but uplifted by 50 per cent to reflect the following factors:

(a)Delays by Mr and Mrs Bilkey in filing and serving documents relevant to the appeal.

(b)The fact that the appeal was without merit.

(c)The fact that Mr and Mrs Bilkey failed to accept a reasonable offer of settlement prior to the hearing.

The issue of delay

[4] Mr Kyriak and Ms Cie point out that the Court made timetabling directions by consent on 22 October 2020. These required the appellants to take the following steps:

(a)To file and serve the common bundle no later than 24 November 2020. The common bundle was not filed and served until 3 December 2020.

1 Bilkey v Kyriak [2021] NZHC 264.
2 At [58].

(b)To file and serve their submissions and chronology no later than 1 December 2020. The submissions and chronology were not served until 7 December 2020.

(c)To file and serve their bundle of authorities no later than 11 February 2021. The bundle of authorities was not filed and served until 15 February 2021.

[5] I consider the delays in complying with the timetable directions to be minor and, in any event, are largely explained by Mr McCartney, counsel for Mr and Mrs Bilkey, in his memorandum dated 12 March 2021. There is no justification for any increase in costs to reflect this factor.

The appeal being without merit

[6] It is obvious from…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bilkey v Kyriak

Details

AGLC: Bilkey v Kyriak [2021] NZHC 599
Case: [2021] NZHC 599
Decision Date: 24 March 2021

CaseChat Overview and Summary

In the High Court of New Zealand, the appeal case of Bilkey v Kyriak was heard and decided by Justice Lang on 24 March 2021. The case involved the appellants, Robert Mackenzie Bilkey, Lynnette Margaret Bilkey, and Hauraki Trustee Services (2008) Limited, who were appealing against an award of costs made in favour of the respondents, Michael Thomas Kyriak and Christina Moira Judith Cie, in the District Court. The central issue before the court was the determination of costs associated with the appeal, as the parties had been unable to reach an agreement on the matter.

The court was tasked with resolving whether the respondents were entitled to an increase in costs for the appeal, based on several factors proposed by the respondents. These factors included delays in filing and serving documents by the appellants, the lack of merit in the appeal, and the appellants' failure to accept a reasonable offer of settlement. The court examined each of these factors in turn, considering the implications and justifications presented by both parties.

In its reasoning, the court noted that while the appellants had indeed experienced minor delays in complying with the timetable directions, these were largely explained by the appellants' counsel and did not warrant an increase in costs. Regarding the argument that the appeal lacked merit, the court found that the issues raised by the appellants were arguable, and therefore, there was no basis for increasing costs on this ground. The court also considered the respondents' offer of settlement, which proposed that the appellants pay a significant portion of the District Court's costs award. The court accepted that the appellants had reasonable justification for rejecting this offer, given the arguable nature of their appeal points.

In conclusion, Justice Lang determined that the respondents were entitled to costs on the appeal in the sum of $13,145, together with disbursements of $50. The court disallowed any uplift in costs due to the factors cited by the respondents, resulting in a final order that did not include the proposed 50% increase in costs.

Orders