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 taken into account if and when costs are finally determined in the proceeding, relying on Wright v Attorney-General.1

Discussion

[7]    Rule 14.8 of the HCR provides 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.

[8]    The defendant was successful with his application to strike out the first version of Mr Golzarpoor’s claim. Subsequent steps were required because the second version of the plaintiffs’ claim was also defective. The starting point is that the defendant is entitled to costs.

[9]    Wright v Attorney-General does not assist Mr Golzarpoor. That case was concerned with an award of costs in favour of a self-represented litigant who was successful in respect of interlocutory applications brought by the other parties to the litigation, who were represented. The issue was the application of the primary rule that a self-represented litigant in New Zealand is not entitled to recover costs against an unsuccessful party. The Court did not order costs in favour of the successful

1      Wright v Attorney-General [2020] NZHC 1166.

self-represented litigant, but stipulated the costs that would have been ordered if the self-represented litigant had been represented.

[10]   At this stage, it is appropriate for the Court to fix costs. The defendant is entitled to costs of $8,604 together with disbursements of $500.

[11]   The plaintiffs’ claim arises out of the allegedly defective construction of their home, by a company controlled by the defendant, Mr Mullany. The plaintiffs say that they are impecunious as a result of the defective building claim, and they seek to sheet home their loss to Mr Mullany under the Fair Trading Act 1986.

[12]   The plaintiffs’ financial position is not in evidence. If the plaintiffs are impecunious and unable to meet an award of costs, this may stymie the litigation, which would be unjust. These circumstances would amount to special reasons, under r 14.8(1) of the HCR, to defer payment of the costs award.

[13]   If the plaintiffs are able to provide evidence to support their assertion that they are impecunious and unable to pay the award of costs, then this will be an appropriate case for an order that the costs shall not become payable until the determination of the proceeding.

Decision

[14]I make the following orders:

(a)the defendant is 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;

(b)this costs order shall not become payable until further order of the Court;

(c)the plaintiffs shall file and serve an affidavit as to their financial position and ability to pay the costs order, by 21 February 2025;

(d)the defendant may file further submissions on payment of the costs order by 28 February 2025;

(e)the plaintiffs may file submissions in reply by 7 March 2025;

(f)I will then review the order in paragraph [14(b)] above.

Associate Judge Brittain