Briden v Lefkada Limited

[2023] NZHC 1764

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-279

[2023] NZHC 1764

IN THE MATTER

of a Deed of Lease dated 6 January 2017

BETWEEN

WARREN JOHN BRIDEN, GARY CYRIL BRIDEN and LYNNE SUSAN BRIDEN as

Partners of the Briden Holdings Partnership Plaintiffs

AND

LEFKADA LIMITED

Defendant

Hearing:

(Determined on the Papers)

Counsel:

J I Taylor for Plaintiffs

T J B Whimp – director of Defendant, by leave

Judgment:

7 July 2023

JUDGMENT OF ASSOCIATE JUDGE LESTER

(Costs)

BRIDEN v LEFKADA LIMITED [2023] NZHC 1764 [7 July 2023]

[1]        I refer to the interim decision on costs issued 9 May 2023 in this proceeding.1 That judgment raised the issue of whether the costs claimed by the plaintiff pursuant to its solicitor-client clause in its commercial lease with the defendant went beyond costs incurred in respect of the rights it sought to enforce in this proceeding.

[2]        Counsel for the plaintiff has filed a revised memorandum dated 2 June 2023 removing costs relating to the recovery of unpaid rent — that issue not being pursued in this proceeding.

[3]The costs claim is for $49,382.84 including GST plus disbursements.

[4]        Indemnity costs will include GST if the party receiving the award is not GST registered and thus unable to recover GST, but will exclude GST if the party can recover GST. I am not told whether the plaintiff partnership is registered for GST. If it is registered for GST then GST will have to be removed from the costs claimed.

[5]        There is no doubt that the plaintiff’s partnership lease entitles it to indemnity costs. I have already entered judgment against Lefkada for costs on a solicitor-client basis.2

[6]        Indemnity costs are determined with reference to actual costs but may be less if the Court considers the actual costs are unreasonably high. It is incorrect in law for the Court to assess reasonableness solely by a comparison of costs charged against the sum at stake. That issue, in fact, does not arise here because the plaintiff was not seeking judgment for rental arrears but sought an order that the defendant yield up the premises. The principle that a party may contractually bind itself to pay another’s full solicitor-client costs is well recognised.

[7]        Plaintiff’s counsel has identified the steps taken in the litigation and steps incidental to the enforcement of the landlord’s rights under the lease. None of those steps could reasonably be said to have been unnecessary, nor can it be said that the charge out rates are excessive.

1      Briden v Lefkada Ltd [2023] NZHC 1089.

2      Briden v Lefkada [2022] NZHC 3372.

[8]        Subject to counsel for the plaintiff confirming that the plaintiff is not registered for GST, there is a costs award in favour of the plaintiff in the sum of $50,732.84. If the plaintiff is registered for GST then the award of costs will have to be adjusted. If counsel for the plaintiff confirms the plaintiff is not GST registered then the costs award is for the above sum. If the plaintiff is GST registered plaintiff’s counsel is to advise by memorandum the costs figure net of GST so the judgment can be adjusted accordingly.

Associate Judge Lester

Solicitors:

Wynn Williams Christchurch CC:

F Konidaris, Rangiora T Whimp, Rangiora