Eliahu v Eliahu - [2022] NZHC 2259

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-2088

[2022] NZHC 2259

BETWEEN
YARON ELIAHU

First Plaintiff

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

AND

DANIEL ELIAHU

First Defendant

PITA BREAD LTD
Second Defendant

PITA HOLDINGS LTD
Third Defendant

DANIEL ELIAHU and DMG TRUSTEES

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

Fourth Defendants

Judgment:

(On the papers)
6 September 2022

JUDGMENT OF BREWER J

(Costs)

This judgment was delivered by me on 6 September 2022 at 3.30 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:
McVeagh Fleming (Auckland) for Plaintiffs DMG Solicitors (Auckland) for First Defendant

ELIAHU v ELIAHU [2022] NZHC 2259 [6 September 2022]

Introduction

[1] On 29 October 2021, the first plaintiff (Yaron Eliahu) filed two on notice interlocutory applications seeking an interim injunction against the first defendant (Daniel Eliahu or “Danny”) and leave to bring a derivative action on behalf of the second and third defendants.

[2] The interim injunction sought to restrain Danny from continuing to make unauthorised payments out of the second and third defendants’ bank accounts to himself or other persons, and continuing to accrue unauthorised and unwarranted expenses for those companies. The derivative action for which leave was sought was against Danny for breach of fiduciary duties and breach of statutory duties, and against the fourth defendants for knowing receipt.

[3] Before those applications were heard and determined, Yaron filed an urgent interlocutory application for an interim injunction restraining Danny on the basis that, between service on Danny of the statement of claim and the above applications, he continued to make substantial unauthorised withdrawals of company funds. Justice Gault made interim orders by consent on 15 March 2022 pending determination of the applications dated 29 October 2021. He reserved the question of costs.

[4] On 30 May 2022, I granted both of Yaron’s 29 October 2021 applications.1 I found that Yaron is entitled to costs.2 If costs could not be agreed, I directed Yaron to file a costs memorandum by 1 July 2022 and Danny to file his reply by 1 August 2022.3

[5] Costs could not be (entirely) agreed. Yaron accordingly filed a memorandum on 1 July 2022. Danny has not filed a memorandum in reply. But attached to Yaron’s memorandum is a letter from Mr Gould, counsel for Danny, outlining the areas of disagreement.

[6]It now falls to me to decide the appropriate costs award.

1 Eliahu v Eliahu [2022] NZHC 1226
2 At [55].
3 At [56].

Discussion

[7] The letter from Mr Gould dated 30 June 2022 confirms that Danny agrees to Yaron’s proposed schedule of costs and disbursements with the exception of five specified matters discussed below.

Filing interlocutory application for interim injunction

[8] Yaron claims $1,434 for filing the urgent interlocutory application for an interim injunction pending determination of the applications dated 29 October 2021.4 Mr Gould suggests that this application “was unnecessary and has not…

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 [2022] NZHC 2259
Case: [2022] NZHC 2259
Decision Date: 6 September 2022

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, Yaron Eliahu, as the first plaintiff, along with three other plaintiffs, brought an action against Daniel Eliahu, Pita Bread Ltd, Pita Holdings Ltd, and Daniel Eliahu and DMG Trustees (Eliahu) Ltd. The suit pertained to an interim injunction sought by Yaron to prevent Daniel Eliahu from making unauthorized payments from the second and third defendants' accounts. Additionally, Yaron sought leave to bring a derivative action against the defendants for breach of fiduciary and statutory duties and for knowing receipt. The court was tasked with determining the appropriate costs to be awarded to Yaron for his successful applications.

The primary legal issues before the court were whether Yaron was entitled to the costs claimed for filing the urgent interlocutory application, preparing a casebook for the hearing, filing a memorandum for a case management conference, and the filing fee associated with the urgent interlocutory application. Daniel Eliahu, the first defendant, contested these claims, arguing that some of the costs were unnecessary or excessive.

The court found that Yaron was entitled to the costs claimed for filing the urgent interlocutory application and preparing the casebook for the hearing. While Daniel Eliahu argued that the urgent application was unnecessary, the court considered it reasonable for Yaron to seek such relief given the circumstances. Additionally, the court noted that the casebook was prepared and served, thus justifying the costs claimed. Regarding the filing fee, the court ruled that Yaron was entitled to recover this disbursement as it was not wasteful. The court did, however, reduce the costs for the memorandum filed for the case management conference from 0.5 days to 0.2 days, equating to $478. The total costs awarded to Yaron were $18,505.50, plus disbursements.

The court awarded costs on a 2B basis in favor of Yaron, totaling $18,505.50 plus disbursements. The specific breakdown of the costs awarded was detailed in the judgment, with considerations made for the necessity and reasonableness of each claimed expense.

Orders