Eliahu v Eliahu - [2021] NZHC 3544

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-475

[2021] NZHC 3544

BETWEEN
DANIEL ELIAHU and YARON ELIAHU as

trustees of the PITA BUSINESS TRUST Intending Plaintiffs

AND

YARON ELIAHU

Intended First Defendant

PITA BREAD LIMITED
Intended Seconded Defendant

Cont/….

Hearing: On the papers

Counsel:

KF Gould for the first-named Intending Plaintiff

CR Andrews for the Intended First Defendant and the second- named Intended Plaintiff
A Challis for the Intended Fourth and Fifth Defendants

Minute:

17 December 2021

COSTS JUDGMENT OF ASSOCIATE JUDGE SUSSOCK

This judgment was delivered by me on 17 December 2021 at 4.30pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors/Counsel:
DMG Solicitors, Auckland McVeagh Fleming, Auckland McElroys, Auckland,

K Gould, Barrister, Auckland

ELIAHU and ELIAHU as trustees of the PITA BUSINESS TRUST v ELIAHU [2021] NZHC 3544 [17
December 2021]

PITA HOLDINGS LIMITED
Intended Third Defendant

TERENCE JAMES QUINN BAUCHER
Intended Fourth Defendant

BAUCHER CONSULTING LIMITED
Intended Fifth Defendant

Introduction

[1] This proceeding is an application for pre-commencement discovery. Following the filing of the application the intended defendants furnished the requested documents, to the extent that they exist, to the first named intending plaintiff.

[2]The only unresolved matter between the parties is the costs of the application.

[3] Memoranda have been filed on behalf of the first named intending plaintiff, the intended first defendant and the intended fourth and fifth defendants jointly. I record at the outset my apologies for the delay in issuing this decision.

[4] The first named intending plaintiff, Mr Daniel Eliahu (“Daniel”), submits costs should be ordered against the intended defendants on the basis that the application was necessary because the documents sought were not provided following request.

[5] The intended defendants submit in response that the question of costs is to be determined in accordance with r 8.22 of the High Court Rules 2016 and not whether the application was necessary.

[6] Mr Yaron Eliahu (“Yaron”), the intended first defendant, considers that costs between himself and Daniel ought to lie where they fall.

[7] The intended fourth and fifth defendants, Mr Terence Baucher and Baucher Consulting Limited (“BCL”), seek an award of costs in their favour of $4,060.00.

Relevant legal principles

[8] Rule 8.22 of the High Court Rules 2016 provides that if an order for pre- commencement discovery is made under r 8.20 the Judge may, if they think it just, order the applicant to pay to the person from whom discovery is sought the whole or part of that person’s expenses (including solicitor and client costs) incurred in relation to the application and in complying with any order made on the application.

[9] Even though r 8.22(3) appears to be predicated on an order being made, the same factors are relevant when an application does not proceed, namely whether opposition to it was reasonable, particularly having regard to the outcome and the motivation for the opposition.1

[10]The question of costs is considered in relation 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 Eliahu v Eliahu

Details

AGLC: Eliahu v Eliahu [2021] NZHC 3544
Case: [2021] NZHC 3544
Decision Date: 17 December 2021

CaseChat Overview and Summary

This proceeding involves a dispute between Daniel Eliahu and Yaron Eliahu, as trustees of the PITA BUSINESS TRUST, and Yaron Eliahu, PITA BREAD LIMITED, Terence James Quinn Baucher, and Baucher Consulting Limited. The case concerns an application for pre-commencement discovery, where the primary issue is the costs associated with this application. The legal matters at hand revolve around the appropriateness of the application for pre-commencement discovery, the authority of the first-named intending plaintiff to bring the application, and the entitlement to costs under the High Court Rules 2016.

The court was required to decide on the basis for awarding costs in the context of a pre-commencement discovery application. Daniel Eliahu argued for costs on the basis that the application was necessary. In contrast, the intended defendants contended that the costs should be determined according to rule 8.22 of the High Court Rules 2016 and not based on the necessity of the application. Yaron Eliahu, the intended first defendant, suggested that costs between himself and Daniel should lie where they fall. Additionally, Terence Baucher and Baucher Consulting Limited sought an award of costs in the amount of $4,060.00.

The court's reasoning focused on the principles outlined in rule 8.22 of the High Court Rules 2016, which allows for the Judge to order the applicant to pay expenses to the person from whom discovery is sought if it is deemed just. The court considered factors such as whether the opposition to the application was reasonable, particularly in light of the outcome and the motivation behind the opposition. The court held that Daniel Eliahu was not entitled to costs as the test for awarding costs in a pre-commencement discovery application does not hinge on the necessity of the application. Regarding Yaron Eliahu, the court accepted that costs between him and Daniel should lie where they fall. However, the court found that the intended fourth and fifth defendants were entitled to costs, as they were not adequately warned about the application and had no prior correspondence regarding the documents requested. Therefore, the court awarded costs to the intended fourth and fifth defendants in the amount of $3,560.00.

The final orders of the court were that the application for costs by the first-named intending plaintiff was declined, costs between the first-named intending plaintiff and the intended first defendant were to lie where they fall, and costs were awarded to the intended fourth and fifth defendants in the amount of $3,560.00 to be paid by the first-named intending plaintiff, Daniel Eliahu.

Orders