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…

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 Eliahu v Eliahu

Details

AGLC: Eliahu v Eliahu [2023] NZHC 459
Case: [2023] NZHC 459
Decision Date: 9 March 2023

CaseChat Overview and Summary

In Eliahu v Eliahu, the first plaintiff, Yaron Eliahu, sought to review the decision of the Registrar of the High Court of New Zealand regarding the quantum of costs awarded to the first defendant, Daniel Eliahu, following a previous judgment. The initial application for contempt orders was dismissed by Peters J, who awarded costs on a 2B basis plus disbursements. The Registrar subsequently issued an order for costs amounting to $24,617.00 along with disbursements of $160.00. Yaron Eliahu contended that the correct quantification should be $10,277.00, and he applied for review or correction of the Registrar's decision under the slip rule.

The primary legal issue before the Court was whether it had jurisdiction to review the Registrar's decision on the quantum of costs. The Court acknowledged its authority to review such decisions, provided that the principles of natural justice were upheld. The Court highlighted that while a judgment, once perfected by sealing, generally cannot be challenged except through appeal, there are circumstances where review is permissible, particularly if the Registrar failed to ensure a fair opportunity for the parties to be heard before making the determination.

In this case, the Court found that the first plaintiff had not been given a fair opportunity to contest the items claimed by the first defendant. Specifically, the costs claimed by the first defendant included items that were not applicable to the nature of the application, which was an interlocutory application for contempt and enforcement of interim orders. Consequently, these items were not claimable. The Court also noted that the first plaintiff had not been served with the sealed order until late November 2022, and had promptly sought a rescission and resealing of the order upon realising the error, thus justifying an extension of time for the review application.

The Court granted the application for review, rescinded the original costs order, and directed the Registrar to reseal the costs order in the corrected amount of $10,277.00 along with the disbursements. Additionally, the first plaintiff was awarded costs on a 2B basis for the review application, along with disbursements.

Orders