BThe sum of $10,958.50 held in trust at the High Court is to be paid to the appellants in partial satisfaction of the costs awards made against Mr Deliu in Deliu v Chapman [2020] NZHC 2100, Deliu v Johnstone [2021] NZCA 337, Deliu v Johnstone [2021] NZCA 488 and Deliu v Johnstone [2021] NZCA 646.
CThe respondent must pay the appellants costs for a standard appeal on a band A basis and usual disbursements.
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REASONS OF THE COURT

(Given by Courtney J)

Introduction

Mr Deliu, the respondent, is the subject of costs orders totalling $11,105 made against him in favour of the appellants, Mr Harborow and Mr Flanagan, in this proceeding (the 1098 proceeding) by both the High Court and this Court.[1] The orders were made in 2020 and 2021. Mr Deliu has not paid any of the amounts owing. He now lives overseas. His only known asset in New Zealand is a sum of $10,958.50 held to his account by the High Court Registry in unrelated proceedings (the 2150 proceeding).[2]
[1]Deliu v Chapman [2020] NZHC 2100 [HC 1098 costs judgment] at [31(c)(iv)]; Deliu v Johnstone [2021] NZCA 337 [CA 1098 leave judgment] at [15]; Deliu v Johnstone [2021] NZCA 488 [CA 1098 first recall judgment] at [8]; and Deliu v Johnstone [2021] NZCA 646 [CA 1098 second recall judgment] at [6].
[2]Deliu v New Zealand Police [2021] NZHC 1744 [HC 2150 costs judgment].at [49] and [50].
The appellants applied under r 7.48 of the High Court Rules 2016 for an order that the funds be paid to them in partial satisfaction of the costs award.[3] Harland J declined the application because she did not consider an order was appropriate where the proceedings in which the funds were held were unrelated to the proceedings in which the costs orders were made.[4]
[3]Originally, there were three applicants and the appeal was brought in all their names. One, Mr Johnstone (now Johnstone J), has since abandoned his appeal.
[4]Deliu v Johnstone [2022] NZHC 467 [judgment under appeal] at [38].
The Judge granted leave to appeal her judgment.[5] Mr Deliu has filed a notice of intention to support the judgment on other grounds. These include the Judge’s failure to adjudicate on Mr Deliu’s “Notice of Protest to Jurisdiction” dated 31 October 2021.[6]
[5]Deliu v Johnstone [2022] NZHC 1893 [HC 2150 costs judgment] at [53].
[6]Brewer J declined Mr Deliu’s requested that his “Protest to Jurisdiction” be heard in a separate and preliminary hearing and directed that his arguments be made in…

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 Harborow v Deliu

Details

AGLC: Harborow v Deliu [2024] NZCA 138
Case: [2024] NZCA 138
Decision Date: 29 April 2024 at 10 am

CaseChat Overview and Summary

In the case of Harborow v Deliu, the Court of Appeal of New Zealand was asked to review a decision by the High Court in relation to an application made by the appellants, Harborow and Flanagan, to enforce costs orders against the respondent, Deliu. The High Court had refused to make an order that funds held in trust by the Court in a separate proceeding be paid to the appellants in partial satisfaction of the costs orders. The Court of Appeal allowed the appeal, set aside the High Court's decision and made the order the appellants had sought.

The central legal issue in the appeal was whether the High Court judge had erred in declining to make an order under r 7.48 of the High Court Rules to enforce the costs orders. The Court of Appeal held that the Judge had erred in focusing on the lack of a close relationship between the two proceedings and in not properly considering the interests of justice, which is the ultimate test for an order under r 7.48. The Court of Appeal concluded that an order should have been made because there were very limited means by which the appellants could enforce the orders and no third parties would be adversely affected.

The Court of Appeal made an order that the sum of $10,958.50 held in trust at the High Court be paid to the appellants in partial satisfaction of the costs awards against Deliu. The Court also ordered that Deliu pay the appellants' costs of the appeal.

Orders