Dahanayake v Benajmin Housing (NZ) Limited

[2018] NZHC 2711

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2017-419-000241

[2018] NZHC 2711

BETWEEN

KASUN DAHANAYAKE

Plaintiff

AND

BENAJMIN HOUSING (NZ) LIMITED and RAJNESH ROHIT PRAKASH

Defendants

Hearing:	(On the papers)
Counsel:	Deep Purusram for the Plaintiff Benjamin Wong for the Defendants
Judgment:	19 October 2018

[COSTS] JUDGMENT OF MOORE J

This judgment was delivered by me on 19 October 2018 at 12:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

DAHANAYAKE v BENAJMIN HOUSING (NZ) LIMITED & ANOR [2018] NZHC 2711 [19 October 2018]

Introduction

[1]This costs decision concludes the parties’ prolonged and unfortunate litigation.

[2]    Their dispute concerned the means by which the defendants would realise assets to satisfy their indebtedness to the plaintiff. It concerned what is, in the scheme of things, a relatively modest debt of only $205,000.

[3]    The factual background is fully canvassed in the Minutes of Smith AJ dated 18 and 18 April 2018. Essentially, the parties disagreed over the conditions upon which the plaintiff would remove his caveats over two properties owned by the second defendant, the sale of which was to release sufficient assets to pay the debt. In the background was their disagreement over the ongoing effect and interpretation of a mediation agreement between the parties dated 8 December 2017.

[4]    Following a hearing on 20 April 2018, I gave directions later that day outlining orders to facilitate, to the extent possible, the settlement of both properties. The properties have now both been sold, and the debt cleared.

Discussion

[5]    It is disappointing the parties could not find their own solution to their disagreements. All the Judges involved in this proceeding encouraged the parties to, in Venning J’s words, “pursue a practical resolution with the assistance of counsel”.

[6]    In the end, however, the court’s intervention was necessary. The orders I made were pragmatic, drawing upon — and striking a practical middle ground between — the interests and concerns of both parties. To that extent, neither party has clearly ‘succeeded’ in terms of HCR 14.2(1)(a). That said I note that:

(a)the primary orders, requiring the plaintiff’s caveats be discharged, were as sought by the defendants; and

(b)my assessment, standing back, is the plaintiff bears slightly more responsibility for the parties’ inability to find a sensible resolution to their differences without resort to costly High Court proceedings.

[7]In those circumstances the defendants are entitled to costs, but not the full

$21,185, and certainly not the increased costs, that it seeks. I consider a reduction of 50 per cent is warranted pursuant to HCR 14.7.

[8]    The other so-called ‘costs’ claimed by the defendants (for costs and penalties incurred following the delay in settlement, and damages for hurt and humiliation) fall outside the statutory costs regime. (And for that matter, so too does much of the ‘compensation’ sought by the plaintiff.)

Result

[9]    I order the plaintiff pay costs in the amount of $10,592.50, and disbursements in the amount of $250.00.

Moore J

Solicitors/Counsel:

Aurora Law, Waiuku

Jefferies Law Ltd, Hamilton