Bilkey v Kyriak - [2020] NZHC 1643

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-172

[2020] NZHC 1643

BETWEEN
ROBERT MACKENZIE BILKEY, LYNNETTE MARGARET BILKEY AND HAURAKI TRUSTEE SERVICES (2008) LTD

Appellants

AND

MICHAEL THOMAS KYRIAK AND CHRISTINA MOIRA JUDITH CIE

Respondents

Hearing: On the papers

Appearances:

W A McCartney & N R Eilenberg for Appellants Respondents in person

Judgment:

9 July 2020

JUDGMENT OF PAUL DAVISON J

[Re: Costs]

This judgment was delivered by me on 9 July 2020 at 3:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Duncan King Law, Auckland

BILKEY v KYRIAK COSTS [2020] NZHC 1643 [9 July 2020]

Background

[1] On 9 June 2020, I dismissed the appellant’s appeal against Judge A P Christiansen’s finding in the District Court as to the lawful placement of the respondents’ letterbox. 1 I reserved the issue of costs and directed the parties to file costs memoranda.2

Costs for the District Court proceedings

[1] The respondents intend to seek a costs award against the appellants in respect of the District Court proceedings. They submit, in light of Judge Christiansen’s recent death, the most efficient way to deal with the issue of costs in the District Court proceeding is for this Court to make a determination pursuant to its inherent jurisdiction.

[2] Mr McCartney, counsel for the appellants, submits the costs accrued in relation to the District Court proceedings should be determined in the District Court. Counsel questions whether this Court has inherent jurisdiction to determine the District Court costs, and refers to r 14.9 of the District Court Rules 2014, which provides:

Costs may be determined by a Judge other than the Judge who heard the matter to which the costs relate, if the Judge who heard the matter to which the costs relate is not available conveniently to make the determination.

“Judge” is defined in s 4 of the District Court Act 2016 as a Judge appointed under that Act.

[3] I consider it is appropriate the costs in relation to the District Court proceedings are determined in the District Court.

Costs on appeal

Respondents’ submissions

[4] The respondents were self-represented in relation to the appeal by the first- named respondent, Mr Michael Kyriak, who is a practising lawyer and partner of the

1 Kyriak v Bilkey [2019] NZDC 25227; and Bilkey v Kyriak [2020] NZHC 1264.
2 Bilkey v Kyriak, above n 1, at [35].

law firm Kyriak Law. The respondents submit that successful litigants in person, who are also lawyers, may recover costs.3

[5] The respondents seek scale 2B costs uplifted by 50 per cent, totalling $18,692. They seek the uplift of 50 per cent on two grounds.

[6] First, in filing the appeal, the appellants pursued an argument that lacked any merit and “was always doomed to fail” as the dispute between the parties was extinguished upon the sale of the appellants’ property.

[7] Secondly, the appellants failed to accept the respondents’ reasonable…

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 [2020] NZHC 1643
Case: [2020] NZHC 1643
Decision Date: 9 July 2020

CaseChat Overview and Summary

In Bilkey v Kyriak, the High Court addressed the issue of costs in relation to an appeal dismissed as moot. The appellants, Robert Mackenzie Bilkey, Lynette Margaret Bilkey, and Hauraki Trustee Services, appealed against the District Court's decision regarding the lawful placement of a letterbox. The respondents, Michael Thomas Kyriak and Christina Moira Judith Cie, sought costs for the appeal and the District Court proceedings. The court considered whether the appeal lacked merit and whether the appellants unreasonably continued the appeal after their property was sold, rendering the appeal moot.

The court found that while the appeal was moot, the appellants’ conduct in continuing to prosecute the appeal after being notified that it was moot warranted an award of increased costs. The court awarded a 25% uplift of the scale 2B costs to the respondents. The court also considered the settlement offers made by both parties and determined that the respondents' offer of 26 May 2020 did not warrant an adjustment in the costs awarded. The court concluded that the appeal hearing duration should be calculated for a quarter-day rather than a half-day.

The final order was that the appellants were to pay the respondents costs calculated in accordance with scale 2B uplifted by 25%, with an additional $50.00 for disbursements. Any issues regarding the calculation of costs were to be referred to the Registrar for final determination.

Orders