Holt v Demetriades - [2021] NZHC 2437

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-1961

[2021] NZHC 2437

BETWEEN
BRENT ROBERT HOLT

Plaintiff

AND

DEMETER (DIOMITRA) MAXINE DEMETRIADES

First Defendant

DIAMOND SECURITY DEVELOPMENT

Second Defendant

Hearing: On the papers

Appearances:

TJP Bowler for the Plaintiff RS Pidgeon for the Defendant

Judgment:

16 September 2021

JUDGMENT OF FITZGERALD J

[As to costs]

This judgment was delivered by me on 16 September 2021 at 3.30pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………………..

To: T Bowler, Auckland

R Pidgeon, Auckland

HOLT v DEMETRIADES [2021] NZHC 2437 [16 September 2021]

Introduction

[1] In September 2019, Mr Holt commenced proceedings against Ms Demetriades and a company named Diamond Security Development Ltd (Diamond Security). Ms Demetriades was the sole director and shareholder of Diamond Security. Mr Holt discontinued his proceedings on 25 March 2021. Ms Demetriades now seeks costs of approximately $37,000.

Background

[2] Mr Holt and Ms Demetriades were in a relationship. Mr Holt’s statement of claim says they separated in 2007.1 Mr Holt’s claims are not pleaded in a particularly clear way, but as I understand matters, he alleges that in 2008, arrangements were agreed between himself and Ms Demetriades which ultimately resulted in funds advanced by him being used by Ms Demetriades in connection with a property which, by the time the proceedings had been commenced, was owned by Diamond Security. Mr Holt alleged that as a result of the monies advanced by him, he acquired a beneficial and equitable interest in the property, and was thereby entitled to a share of the net sale proceeds from that property. In the alternative, he alleged that the monies advanced were a loan and should be repaid.

[3] To protect his position, Mr Holt lodged a caveat over the relevant property. This caveat was eventually removed, however, and the property was sold. Mr Holt alleged that he made demand for what he says was his share of the sale proceeds but has not received anything.

[4] Ms Demetriades denied Mr Holt’s allegations. She said that arrangements in relation to the property (and another property, both of which had been jointly owned by the parties at separation) reflected an agreed division of their relationship property pursuant to a formal relationship property agreement.2 She said that the monies paid by Mr Holt reflected matters such as advance payment of child support obligations, repayment of a loan and rental payments. Ms Demetriades also pleaded as an

1 Ms Demetriades’ statement of defence says the parties separated in 2004.
2 It seems that given the passage of time, a copy of that agreement is no longer available.

affirmative defence that Mr Holt’s claims were an abuse of process, in that the amount she owed Mr Holt had already been considered and determined in the context of Mr Holt’s application for administrative review of his child support obligations. Ms Demetriades also said that the claims (relating to events taking place some…

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 Holt v Demetriades

Details

AGLC: Holt v Demetriades [2021] NZHC 2437
Case: [2021] NZHC 2437
Decision Date: 16 September 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Brent Robert Holt commenced proceedings against Demeter (Diomitra) Maxine Demetriades and Diamond Security Development Ltd in September 2019. The court was required to decide the legal issues surrounding the costs incurred by the defendants in the proceedings, particularly whether the discontinuing plaintiff should bear the costs of the proceeding. The plaintiff discontinued the proceedings on 25 March 2021, roughly two months before trial. The defendants now sought costs of approximately $37,000.

The court's reasoning and outcome was that Mr Holt should make a contribution to Ms Demetriades' costs as per r 15.23 of the High Court Rules 2016. The court held that Ms Demetriades can recover a total of $4,000 paid to Rennie Cox as a disbursement in these proceedings, conditional on her filing an affidavit demonstrating that she personally paid at least that amount to Rennie Cox. The court also approved the costs and disbursements for the period in which Ms Demetriades was represented in an amount of $10,252,60. The court held that the claim for an uplift of 50 per cent on all the costs sought was misconceived, and declined to reduce costs on the basis of the "without prejudice except as to cost" negotiations between the parties.

In conclusion, the court made the following orders: (a) subject to the filing of an affidavit as to those matters set out in the judgment, and that is accepted by the Court as demonstrating that Ms Demetriades herself, and not Diamond Security, paid at least $4000 towards Rennie Cox's invoices, I make an award of disbursements to Ms Demetriades of $4,000 (relating to Rennie Cox's fees), plus a $110 filing fee; and (b) I award costs and disbursements to Ms Demetriades for the period while she was represented in an amount of $10,252,60.

Orders