Golzarpoor v Mullany - [2025] NZHC 78

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-1266

[2025] NZHC 78

UNDER The Contract and Commercial Law Act 2017

BETWEEN

HAMED GOLZARPOOR and MEKYAL AKHLAGHI AMIRI

Plaintiffs

AND

KEVIN JOHN MULLANY

Defendant

Hearing: On the papers

Counsel:

R Latton for the Plaintiffs

G Boggiatto for the Defendant

Judgment:

5 February 2025

JUDGMENT OF ASSOCIATE JUDGE BRITTAIN

This judgment was delivered by me on 5 February 2025 at 4 pm.
Pursuant to Rule 11.5 of the High Court Rules.

…………………..
Registrar/Deputy Registrar

Solicitors:
Leigh Judd Law, Auckland George Bogiatto, Auckland

Counsel:
Rob Latton Barrister

GOLZARPOOR v MULLANY [2025] NZHC 78 [5 February 2025]

Introduction

[1] On 19 June 2024, I granted the defendant’s application to strike out the first-named plaintiff’s statement of claim dated 8 June 2023. I granted leave to the first-named plaintiff, Mr Golzarpoor, to file an amended statement of claim.

[2] Mr Golzarpoor complied with that order. However, the amended pleading also failed to comply with the High Court Rules 2016 (HCR). On 31 October 2024, I issued a minute directing the plaintiffs to file and serve an amended statement of claim by 29 November 2024. In my minute, I noted that it was possible to discern a tenable cause of action in the first amended statement of claim.

[3] The plaintiffs were self-represented at that stage. In my minute dated 31 October 2024, I noted that Mr Golzarpoor had advised the Court that he could not afford to obtain legal advice. I recorded that the plaintiffs should take legal advice to assist in preparation of an amended pleading, otherwise it was likely that the claim would be struck out in its entirety, potentially exposing Mr Golzarpoor to a costs award in favour of the defendant.

[4] The plaintiffs headed my advice and obtained legal representation. They have now filed an amended statement of claim dated 12 October 2024, which the defendant accepts complies with the HCR, subject to a request for further particulars. The pleading was prepared by the plaintiffs’ legal representatives.

[5] The defendant now applies for costs in respect of all steps related to his application to strike-out the plaintiff’s pleading, calculated on a 2B basis. The amount claimed is $8,604 plus disbursements of $500.

The plaintiffs’ argument

[6] Counsel for the plaintiffs, Mr Latton, takes no issue with the defendant’s calculation of the quantum of 2B costs. Mr Latton makes three submissions:

(a)the defendant’s application for strike-out cannot be considered as successful, because the Court gave Mr Golzarpoor an opportunity to re- plead his claim in compliance with the HCR, which he eventually did;

(b)the courts generally take a lenient approach towards costs against litigants in person, particularly where the self-represented litigant has a tenable case;

(c)costs should be reserved, or I should exercise my discretion to express my view on an appropriate award of costs but defer making an actual award, on the basis that my view on costs might then be…

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 Golzarpoor v Mullany

Details

AGLC: Golzarpoor v Mullany [2025] NZHC 78
Case: [2025] NZHC 78
Decision Date: 5 February 2025

CaseChat Overview and Summary

The High Court of New Zealand, Auckland Registry, dealt with an application for costs in the case of Golzarpoor v Mullany. The plaintiffs, Hamed Golzarpoor and Mekyal Akhlaghi Amiri, filed a claim against the defendant, Kevin John Mullany, regarding the defective construction of their home, which was allegedly carried out by a company controlled by the defendant. The court had previously granted the defendant's application to strike out the first-named plaintiff's statement of claim, allowing the plaintiffs to file an amended statement of claim. Despite this, the amended pleading still did not comply with the High Court Rules 2016. The plaintiffs eventually filed a compliant amended statement of claim, leading the defendant to apply for costs in respect of all steps related to his application to strike out the plaintiffs' pleading, calculated on a 2B basis. The plaintiffs argued against the award of costs, claiming that the application for strike-out could not be considered successful, and that the court should take a lenient approach towards costs against self-represented litigants, especially when they have a tenable case. They also requested that the court defer making an actual award of costs, citing Wright v Attorney-General.

The court considered Rule 14.8 of the High Court Rules, which states that costs on an opposed interlocutory application must be fixed in accordance with the rules when the application is determined, and become payable when they are fixed, unless there are special reasons to the contrary. The court found that the defendant was entitled to costs, but noted that if the plaintiffs were impecunious and unable to meet an award of costs, this may stymie the litigation, which would be unjust. Therefore, the court decided that the defendant was entitled to costs of $8,604 together with disbursements of $500 against the first-named plaintiff in respect of the application to strike out the first-named plaintiff's claim. However, the court ordered that this costs order shall not become payable until further order of the Court, allowing the plaintiffs to file and serve an affidavit as to their financial position and ability to pay the costs order by 21 February 2025. The defendant may then file further submissions on payment of the costs order by 28 February 2025, and the plaintiffs may file submissions in reply by 7 March 2025, after which the court will review the order in paragraph [14(b)] above.

Orders