Cooper v Cooper & Co Real Estate Albany Limited

[2025] NZHC 1903

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1142

[2025] NZHC 1903

BETWEEN

MARTIN REES COOPER

Plaintiff

AND

COOPER & CO REAL ESTATE ALBANY LIMITED

First Defendant

ZAIDONG RONG
Second Defendant

Continued …

Hearing:

On the papers

Appearances:

B J Burt, K D Puddle and X Shu for the Plaintiff

S L Robertson KC, S F Pearson and G W Easton for Defendants D M Hughes and R A Idoine for the Third Party

Judgment:

11 July 2025

JUDGMENT OF MUIR

Final Judgment as to Costs – Mr Meltzer

This judgment was delivered by me on 11 July 2025 at 3.00 pm, Pursuant to Rule 11.5 of the High Court rules.

Registrar/Deputy Registrar Date: ……………………………

Solicitors:

Wilson Harle, Auckland Solar Legal, Auckland

Anthony Harper, Auckland

COOPER v COOPER & CO REAL ESTATE ALBANY LTD [2025] NZHC 1903 [11 July 2025]

CIV-2021-404-1636

BETWEEN

TIEYING MA
First Plaintiff

ZAIDONG RONG
Second Plaintiff

AND

MARTIN REES COOPER

First Defendant

COOPER & CO REAL ESTATE LIMITED

Second Defendant

COOPER & CO REAL ESTATE ALBANY LIMITED

Third Party

[1]                 In my  interim  judgment  in  respect  of  Mr  Meltzer’s  costs  claim  dated  17 June 2025, I made a number of findings and observations, and invited brief submissions in respect of the following four issues:1

(a)What is the exact quantum of CCREA's recovery (including interest) under [385] of my judgment?

(b)Has this sum now been paid?

(c)Does Mr Meltzer have priority over any other creditors of CCREA including (now) CCRE?

(d)Are there any other creditors of CCREA, noting as I do at [137], n 25 to my judgment that as at the time of delivery Mr Meltzer had yet to determine the validity of an invoice from Prestige Print?

[2]I have now received submissions from each of the parties.

[3]                 Mr Cooper/CCRE confirm that CCRE has now paid CCREA the judgment sum of $71,270.90 plus interest (for a total payment of $89,911.39).

[4]                 Mr Meltzer submits in respect of issue (c) that he has an equitable lien over the assets of CCREA which survives any intervening insolvency. He says, in my view, persuasively, that Court-appointed managers should be in no different position to receivers in this respect, and that in the context of his costs application I could make a declaration to that effect. Mr Rong and Ms Ma are “content” that I should do so. Mr Cooper/CCRE do not directly engage on this issue.

[5]                 In addition, Mr Meltzer now makes a “costs on costs” application which did not feature in the extensive memoranda filed in advance of my interim judgment. In doing so I consider Mr Meltzer strays from the limited remit of my interim costs judgment. I do not consider it appropriate to entertain a “costs on costs” application at this stage. In any event, even if the claim had been earlier made, I would not have entertained an award in the indemnity sum sought—$49,527.46. I consider that an unreasonable sum in the context of my initial prescription that all costs submissions should be limited to a maximum of eight pages and in the context of the limited further information sought in my interim judgment. Had I been persuaded to consider a “costs

1      Cooper v Cooper & Co Real Estate Albany Ltd [2025] NZHC 1581 [first costs judgment] at [75].

on costs” claim at this stage I would not have approached that aspect of the claim on an indemnity basis. I would have awarded scale costs by analogy with preparing written submissions for an interlocutory application in the amount of $3,585.2

[6]                 Both Mr Cooper/CCRE and Mr Meltzer also use the opportunity provided by my information request to argue that I should give judgment against Mr Rong/Ms Ma for the full indemnity amount specified in that judgment ($251,812.26), not simply the shortfall between Mr Meltzer’s costs and the funds available in CCREA to meet them (now quantified at $43,177.32).3 Mr Cooper/CCRE’s reasons for doing so are obvious. It would result in some distribution to CCRE in respect of its successful cross-claim, a result not anticipated in my substantive judgment which identified CCRE’s cross-claim as “somewhat academic”.4

[7]                 I am not persuaded that this approach is either consistent with the concerns which underscored my interim costs judgment. My concern was that Mr Meltzer not be “out of pocket” for the costs incurred by his reasonable involvement in the proceeding. He is not “out of pocket” to the extent he is entitled to indemnity from the assets of CCREA (and there are assets available). The shortfall in this case is

$43,176.78. I agree with Mr Rong and Ms Ma that, to the extent that Mr Meltzer seeks a full indemnity from the plaintiffs, he is effectively advocating for CCREA when the award that is being made to him is in his personal capacity as a court-appointed manager. CCREA, which took no steps in the proceedings and whose claim for costs I dismissed in paragraphs [56]–[59] and [78] of my costs judgment on its claim, is not entitled to such an indemnity.

[8]                 I agree with Mr Meltzer’s submission that his position is sufficiently akin to that of a receiver that he is entitled to an equitable lien over the assets of CCREA for costs reasonably incurred and arising from his appointment as court-appointed manager. I have already assessed these as $251,812.26. Like institutional constructive

2      This sum is arrived at by multiplying $2,390 by 1.5: see High Court Rules 2016, sch 2, pt 1.

3      Being the $133,088.17 referenced in [72] of my first costs judgment, less the $89,911.39 now paid by CCRE to CCREA.

4      Cooper v Cooper & Co Real Estate Albany Ltd [2025] NZHC 478 at [382].

trusts, equitable liens arise “by operation of law”.5 No positive court order is therefore required to create an equitable lien.6 Since I have not been addressed on my jurisdiction to grant a declaration (effectively as to priority) within the context of a non-party costs claim, I am content to leave the position on that basis.

Result

[9]                 I award costs against the plaintiffs (CIV-2021-404-1636) and in favour  of  Mr Meltzer in the sum of $43,176.78.

Muir J

5      S and S Ltd v XYZ Ltd [2016] NZHC 26 cited with endorsed in Hong v Kinnon [2025] NZCA 117 at [33]. In comparison to, for example, a remedial constructive trust, which is imposed by, and does not exist until, the court makes an order.

6      A conclusion  supported by  the decision  of the UK Supreme Court in  Bott & Co  Solicitors  Ltd v Ryanair DAC [2022] UKSC 8, [2023] AC 635 at [104] (regarding solicitor’s equitable liens) and S and S Ltd v XYZ Ltd, above n 7, at [38] (regarding trustee’s equitable liens).