Huljich v Huljich - [2019] NZHC 565

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2014-404-002631

[2019] NZHC 565

BETWEEN
ELIZABETH HULJICH

Plaintiff

AND

CHRISTOPHER PETER HULJICH

First Defendant

PETER KARL CHRISTOPHER HULJICH
Second Defendant

MICHAEL STEPHEN HULJICH

Third Defendant

Hearing: (On the papers)

Counsel:

G R Little SC and D B Beard for the Plaintiff

D H McLellan QC, J S Cooper QC and H M Z Ford for Defendants

Judgment:

25 March 2019

COSTS JUDGMENT OF VENNING J

This judgment was delivered by me on 25 March 2019 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Nicholls Law Ltd, Auckland
Harmos Horton Lusk, Auckland Counsel: G Little SC/D B Beard, Auckland
D H McLellan QC/J S Cooper QC, Auckland

HULJICH v HULJICH [2019] NZHC 565 [25 March 2019]

[1] In the judgment delivered on 20 December 2018 the Court dismissed the plaintiff’s claim, entered judgment for the defendants and reserved the issue of costs.1

[2] The defendants now seek indemnity costs of $605,820.61, plus disbursements of $43,535.97, in total $649,356.58. In the alternative they seek costs on a 2B scale with 100 per cent uplift totalling $306,492.00, together with the disbursements.

[3] Counsel for the plaintiff accepts the defendants have endeavoured to take a reasonable approach in the memorandum. However, Mr Nicholls submits the indemnity costs sought are unreasonable in the circumstances. He submits costs should be no more than scale, or if there is to be an uplift, the uplift should be no more than 50 per cent.

[4] Although Mr Nicholls did not take issue with two senior counsel representing the defendants I record that I accept it was appropriate for the three defendants to have been represented by two senior counsel (as well as to be assisted by one junior counsel). By the time the case came to trial there were 14 causes of action, a number of which were pleaded against all three defendants. The allegations were wide-ranging and historical. While potentially there could have been a conflict between the particular defendants, senior counsel for the defendants were able to share the workload so that there was no duplication of effort and the case was presented efficiently.

[5] Costs are to be fixed in accordance with Part 14 of the High Court Rules. The principles that have developed in relation to costs are now relatively well established. While the Court retains an overriding discretion in relation to costs2 certainty and the application of the prescribed rules in relation to costs is an important consideration. Departure from scale is limited.

[6] The rules do, however, provide for departure from scale and for indemnity costs in the circumstances prescribed in r 14.6. As relevant r 14.6 provides:

1 Huljich v Huljich [2018] NZHC 3429.
2 HCR 14.1.

Increased costs and indemnity costs

(1)Despite rules 14.2 to 14.5, the court may make an order—

…

(b) that the costs payable are the actual costs,…

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 Huljich v Huljich

Details

AGLC: Huljich v Huljich [2019] NZHC 565
Case: [2019] NZHC 565
Decision Date: 25 March 2019

CaseChat Overview and Summary

In the case of Huljich v Huljich, the High Court of New Zealand was tasked with determining the issue of costs following the dismissal of the plaintiff's claim against the three defendants. The plaintiff, Elizabeth Huljich, had originally brought a claim against the defendants, all of whom were her former husbands, asserting multiple causes of action including allegations of fraud and deceit. The court had previously dismissed the plaintiff's claim, and the defendants now sought indemnity costs of $605,820.61, plus disbursements of $43,535.97. Alternatively, they sought costs on a 2B scale with a 100% uplift, amounting to $306,492.00, together with the disbursements.

The legal issues before the court were whether the indemnity costs claimed by the defendants were reasonable and justified under the circumstances. The plaintiff argued that the indemnity costs sought were unreasonable, and that any uplift should be no more than 50%. The defendants contended that the plaintiff's case lacked any legal basis, had serious deficiencies in evidence, and involved frivolous and vexatious allegations that were not pursued at trial. They further argued that the plaintiff's conduct had caused delay and inefficiency, and that she had unreasonably rejected settlement offers.

The court considered the principles governing costs in the High Court Rules and found that indemnity costs could be awarded if certain criteria were met, such as the plaintiff acting vexatiously, frivolously, or improperly. The court found that multiple factors justified an award of indemnity costs in this case. The plaintiff's claims were without legal merit, she had failed to comply with court orders, and she had made frivolous and vexatious allegations. Additionally, the plaintiff had unreasonably rejected settlement offers and continued to pursue a hopeless case. The court concluded that the indemnity costs claimed by the defendants were reasonable and awarded them against the plaintiff in the sum of $605,820.61, together with disbursements of $43,535.97.

Orders