Eliahu v Eliahu

[2023] NZHC 459

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-2088

[2023] NZHC 459

BETWEEN

YARON ELIAHU

First Plaintiff/Applicant

LIA ELIZABETH ELIAHU, LEO DANIEL ELIAHU and LILLY RON ELIAHU
Second Plaintiffs

AND

DANIEL ELIAHU

First Defendant/Respondent

PITA BREAD LIMITED
Second Defendant

PITA HOLDINGS LIMITED

Third Defendant

DANIEL ELIAHU and DMG TRUSTEES

(ELIAHU) LIMITED sued as trustees of the PITA PROPERTY TRUST

Fourth Defendants

Hearing:	(On the papers)
Judgment:	9 March 2023

JUDGMENT OF VENNING J

This judgment was delivered by me on 9 March 2023 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           McVeagh Fleming, Auckland

DMG Solicitors, Auckland

Counsel:            K F Gould, Auckland

G Blanchard KC, Auckland

ELIAHU v ELIAHU [2023] NZHC 459 [9 March 2023]

[1]    In a judgment delivered on 3 November 20221 Peters J dismissed the first plaintiff’s application for contempt orders against the first defendant and awarded costs on a 2B basis plus disbursements.

[2]The first defendant subsequently presented an order for costs in the sum of

$24,617.00 together with disbursements of $160.00. The Registrar sealed and issued the order.

[3]    The first plaintiff seeks to review the Registrar’s decision or alternatively to correct it under the slip rule. The first plaintiff says the correct quantification of the Judge’s order is $10,277.00 together with disbursements of $160.00.

[4]    The first defendant opposes the first plaintiff’s application for review and/or for amendment. The parties are agreed the matter can be dealt with on the papers.

[5]    The first issue is the jurisdiction of the Court to review the Registrar’s decision as to the quantum of costs in these circumstances. In a number of cases this Court has accepted that it has jurisdiction to review a Registrar’s decision in relation to costs awards.2

[6]    In Creative Development Solutions v Chorus New Zealand Limited Associate Judge Johnston referred to the above authorities and summarised the principles as follows:3

[25]It appears to me that the principles at play are these:

(a)Once a judgment is perfected by sealing, in the interests of finality, it is not generally open to a party to challenge it except by way of the exercise of an available right of appeal. This is what is referred to in the cases as the principle of finality. It is grounded on public policy favouring finality and certainty of outcome in litigation;

(b)However, that starting point must yield to principles of natural justice or fairness in the conduct of litigation. So, materially

1      Eliahu v Eliahu [2022] NZHC 2872.

2      Bank of Nahodka v The Fishing Vessel “Abruka” (1997) 10 PRNZ 659; Gairloch Holdings Ltd v Tullimore Investments Ltd HC Wellington CIV-2010-485-295, 16 September 2010; Cameron v Coleman HC Wellington CIV-2010-485-2151, 5 October 2011; and Creative Development Solutions v Chorus New Zealand Limited [2020] NZHC 2180.

3      Creative Development Solutions v Chorus New Zealand Ltd, above n 2.

for present purposes, if the Court makes an order granting costs and disbursements to one party without determining definitively the quantum of any aspect of the same, leaving that for determination by the Registrar, then, as a matter of natural justice, the Registrar is bound to ensure that the parties have a fair opportunity to have their say before determining whatever he or she must determine;

(c)If the Registrar does not do that, then a party adversely affected is entitled to have the situation remedied, which may be done by review or under the slip rule depending on the circumstances of the case;

(d)In seeking such a remedy, the applicant will have to establish:

(i)First, that the Registrar failed to ensure that it had a fair opportunity to have its say in relation to the issue determined; and

(ii)Second, that the judgment as sealed contains a non- trivial error requiring correction.

[7]    I accept that in principle a judge of the High Court may review a registrar’s decision in relation to the quantum of costs fixed by the Registrar following a judgment of the Court.

[8]    In his submissions for the first defendant in opposition Mr Gould submits that the first plaintiff had other remedies by way of an appeal and/or recall of the judgment. He notes that the time provided for review of the Registrar’s decision under r 2.11 has long expired. The formal application to review was only filed on 14 December 2022.

[9]    I consider the first defendant’s reliance on the fact the interlocutory application for review was not filed until 14 December 2022 to lack merit. On the affidavit evidence of Eryanto Widjaya on this application the sealed order was only served on the first plaintiff’s solicitors on 29 November 2022 and the first plaintiff submitted a memorandum to the Court on 1 December asking the Court to rescind and direct refixing and resealing of the order.

[10]   While a formal application was not filed, notice was given within the five working days after receipt by the first plaintiff’s solicitors of the order. The Court can

enlarge the time under r 1.19.4 If necessary I would extend the time for review in those circumstances.

[11]   In his submissions in opposition for the first defendant Mr Gould repeats the submission that the first plaintiff had other remedies by way of appeal and/or recall. I do not consider those to be the appropriate approach to the Registrar’s decision to quantify costs. As counsel for the first plaintiff submits the quantification of costs by the Registrar is not a decision from which an appeal could be brought.5 The first plaintiff is not seeking to challenge Peters J’s decision or recall it but rather seeks correction of the erroneous quantification by the Registrar relying on the first defendant’s quantum memorandum.

[12]   The Court understands it is general practice, especially in cases where a substantive costs award is sought, to circulate a proposed draft for approval or confirmation to the other side, which would obviate the need for any such application as the present. I also accept as Associate Judge Johnston noted that where the order has been sealed without reference then the applicant needs to satisfy the Court there has been a non-trivial error which requires correction as well as establishing that the Registrar sealed the order without notice. Consistent with that, there will be no need to refer the proposed order to the other party where the matter is straightforward and there can be no issue.

[13]   In the present case the issue between the parties relates to the first defendant’s claim for items 30, 32, 33 and 33B of Schedule 3. All the items the first defendant has claimed for relate to items provided for at an affidavit hearing. Items 30 – 36 apply to hearings where the evidence is presented by way of affidavit instead of witness statements. While affidavits were filed the application in the present case was an interlocutory application to enforce interim orders and for contempt. The cost items relating to such applications are dealt with at items 22 – 29 of Schedule 3.

[14]   It follows that the items claimed by the first defendant, and subsequently sealed by the Registrar, for items 30, 32, 33 and 33B are not claimable.

4      Jones v NZ Bloodstock Finance & Leasing Ltd [2021] NZHC 1228 at [75].

5      Jones v NZ Bloodstock Finance & Leasing Ltd, above n 1, at [77].

[15]The application for review must be allowed.

[16]   In the circumstances it is unnecessary to consider the application to correct the order under the slip rule.

Result/orders

[17]   There will be a formal order enlarging the time for bringing the review application pursuant to r 1.19.

[18]   The applicant’s review of the decision of the Registrar of this Court fixing costs in the sum of $24,617.00 together with disbursements at $160.00 dated 3 November 2022 is granted. The costs order is rescinded.

[19]   The Registrar is directed to reseal the costs order in the first defendant’s favour in the corrected amount of $10,277.00 together with disbursements of $160.00.

[20]   The first plaintiff is to have costs on a 2B basis for this application together with disbursements. (For the avoidance of doubt the items approved are items 22, 24 and 11 and 29.

Venning J