Deliu v Johnstone - [2022] NZHC 467

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-1098

[2022] NZHC 467

BETWEEN
FRANCIS CATALIN DELIU

Plaintiff

AND

DAVID JOHNSTONE, MARK HARBOROW, NICK FLANAGAN

First to Third Defendant

THOM CLARK

Fourth Defendant

NEW ZEALAND POLICE

Fifth Defendant

MIKE BUSH, STEPHEN PEAT, GILLIAN HOLLAND and TONI JORDAN

Sixth to Ninth Defendants

Hearing: 17 February 2022

Appearances:

N F Flanagan for himself and first and second defendants as applicants

F C Deliu in person as respondent
A P Lawson for the fourth to ninth defendants

Judgment:

15 March 2022

JUDGMENT OF HARLAND J

[ON APPLICATION BY FIRST – THIRD DEFENDANTS UNDER R 7.48]

This judgment was delivered by me on 15 March 2022, at 4:00 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar Date……………………………..

Solicitors:
Crown Law, Wellington Meredith Connell, Auckland

Copy to: Plaintiff

DELIU v JOHNSTONE [2022] NZHC 467 [15 March 2022]

Introduction

[1] The first, second and third defendants (the Meredith Connell parties) apply for orders under r 7.48 of the High Court Rules 2016 (HCR) that the sum of $10,958.50, held on trust at the High Court in a separate proceeding involving Mr Deliu, be paid to them in partial satisfaction of the costs awards made against Mr Deliu in their favour in this proceeding and in relation to three unsuccessful appeals to the Court of Appeal arising from it.1 They rely on Kidd v van Heeren as authority to support their application.

[2] Mr Deliu opposes the application. He submits that there is no jurisdiction either as a matter of law to enforce the orders for costs made against him under r 7.48 (rather enforcement under Part 17 of the HCR applies) or generally, the Meredith Connell parties have no standing in the separate proceedings and therefore Kidd v van Heeren is distinguishable, and there is no lis pendens for the Court to adjudicate.

[3] I have decided to dismiss the application. This judgment sets out my reason for so doing.

Background

Costs in this proceeding

[4] I start by referring to a judgment of Palmer J which is the basis for the costs award against Mr Deliu in favour of the Meredith Connell parties. This judgment determined applications for security for costs by various defendants in four separate proceedings, including this proceeding.

[5] In his judgment, Palmer J summarised the nature of this proceeding, against both the Meredith Connell parties and the other defendants (the Police parties), as comprising an application by Mr Deliu for judicial review and a suit first for misfeasance in public office in relation to an alleged investigation of him by the Police and members of Meredith Connell (the firm of the Auckland Crown Solicitor) and second, for abuse of process in reactivating an investigation against him for assault.

1 [2021] NZCA 337; [2021] NZCA 488; [2021] NZCA 646 (See Applicants’ Bundle).

[6] In relation to the application for security for costs, Palmer J identified his primary consideration to…

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 Deliu v Johnstone

Details

AGLC: Deliu v Johnstone [2022] NZHC 467
Case: [2022] NZHC 467
Decision Date: 15 March 2022

CaseChat Overview and Summary

In Deliu v Johnstone, the first, second, and third defendants sought orders to enforce costs awards made against Francis Catalin Deliu in a proceeding and three related appeals, using funds held in a separate proceeding. Deliu opposed the application, arguing the court lacked jurisdiction under Rule 7.48 of the High Court Rules 2016 to enforce the orders, and that the defendants had no standing in the separate proceeding. The key issue was whether the interlocutory costs orders could be enforced under Rule 7.48 using the funds held in the separate proceeding. The court found that while Rule 7.48 could be used to enforce interlocutory orders, the facts of this case were distinguishable from Kidd v van Heeren, where the court had enforced an interlocutory order using funds from a separate proceeding. Here, the proceedings were entirely separate, and the defendants had no interest in the funds held in the separate proceeding. Therefore, the application was dismissed.

The court noted that although the defendants had not formally demanded payment of the costs, the fact of the application demonstrated their desire for Deliu to pay. However, the court found that the defendants lacked standing to enforce the costs orders using the funds held in the separate proceeding. The court also declined to address Deliu's remaining arguments opposing the application. Deliu was given the opportunity to seek costs if he succeeded, with written submissions to be filed within 14 days of the judgment. The Meredith Connell parties could file a reply within 14 days thereafter, unless a further hearing was required.

Orders