Carters Building Supplies Limited t/a Carters v Mitalauskas

[2025] NZHC 723

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-3347

[2025] NZHC 723

BETWEEN

CARTERS BUILDING SUPPLIES

LIMITED trading as CARTERS Applicant

AND

ANDRIUS MITALAUSKAS AND LYAN XIE

Respondents

Hearing:

On the papers

Appearances:

C R Russell for the Applicant

No appearance for the Respondents

Judgment:

1 April 2025

COSTS JUDGMENT OF HARVEY J

This judgment is delivered by me on 1 April 2025 at 2.15 pm pursuant to r 11.5 of the High Court Rules

………………………………
Deputy Registrar

Solicitors:

Stace Hammond, Hamilton

CARTERS BUILDING SUPPLIES LIMITED v MITALAUSKAS & XIE [2025] NZHC 723 [1 April 2025]

Introduction

[1]    On 22 January 2025, I reissued a judgment granting the application of Carters Building Supplies Ltd (Carters) that its two caveats lodged against titles to seven Auckland properties owned by the respondents, Andrius Mitalauskas and Lyan Xie, not lapse.1

[2]    Counsel for Carters, Mr Morris, filed a memorandum dated 4 February 2025 seeking costs in response to my indication in the judgment that Carters were entitled to costs.2 Mr Morris submitted that Carters seek 2B scale costs of $6,692.00 and disbursements of $751.95, resulting in a total of $7,443.95.

[3]    No response was filed by the respondents. As Mr Morris noted in his memorandum, the respondents have not provided an address for service and appear to be evading service. Mr Morris further explained that while he had sent an email to the email address that the respondents have previously used in correspondence with Carters, he had not received a response at the time of filing his memorandum. In a recent minute, I directed that an application for substituted service be filed.

Legal principles

[4]    Costs awards are at the discretion of the Court.3 This discretion is to be guided by the principles set out in the High Court Rules 2016. The general principle is that the party who fails with respect to a proceeding should pay costs to the successful party.4 Ultimately, though, the overall objective is that any costs award ought to do justice between the parties.5

Discussion

[5]    There is nothing exceptional about Carters’ claim in the present case. It is made on the basis of the general principle mentioned above. I see no reason why the

1      Carter Building Supplies Ltd v Mitalauskas & Xie [2025] NZHC 26.

2 At [21].

3      High Court Rules 2016, r 14.1.

4      Rule 14.2(1)(a).

5      Kinney v Pardington [2021] NZCA 174 at [1].

general principle should not be applied here. Plainly, Carters were the successful party in the proceeding. Further, the amount Carters seek is reasonable and not excessive in the circumstances.

Decision

[6]    The respondents must pay Carters reasonable costs of $6,692.00, as calculated on a 2B basis, and disbursements of $751.95.

Harvey J