Joshi v Eesha Holdings Limited

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-001519

CIV-2015-404-001520 [2015] NZHC 3062

BETWEEN
KULBHUSHAN JOSHI AND JEEVAN

JOSHI Applicants

AND

EESHA HOLDINGS LIMITED First Respondent

KAMIL RAGINA DEWAN GOUNDAR Second Respondent

NALINA REKHA GOUNDAR Third Respondent

Judgment: 4 December 2015

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 4 December 2015 at 4.00 pm
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………………

JOSHI v EESHA HOLDINGS LTD & ORS [2015] NZHC 3062 [4 December 2015]

[1] In my decision of 13 November 2015 I declined to make an order removing the caveat from the applicants’ property on the condition that the first respondent takes steps to apply for specific performance of the sale and purchase agreement on which the caveat is based. The respondents now seek costs. The applicants resist, on the basis that, had steps been taken to apply for specific performance earlier they would not have been forced into the position of having to apply to remove the caveat.

[2] It is generally the position that costs follow the event but, ultimately, the Judge retains a discretion. This is one of those cases in which I consider that costs should be reserved rather than fixed now. There are two reasons for this. The first is that relied on by the applicants; they have been left in the position of being unable to deal with their property while the first respondent has done nothing to advance matters towards a proper resolution of the obvious dispute between them. Even in the face of the application for an order to remove the caveat the first respondent did nothing to advance matters. Secondly, the dispute will ultimately involve a significant credibility contest between the applicants and the third respondent. If the applicants prevail at trial any costs fixed now will need to be re-visited. In these circumstances I consider it preferable for both parties that costs be reserved and
fixed when the outcome of the substantive dispute is known.

P Courtney J

CaseChat Overview and Summary

The applicants, Kulbhushan Joshi and Jeevan Joshi, sought to have a caveat removed from their property, which was held by Eesha Holdings Limited. The first respondent, Eesha Holdings Limited, did not take steps to apply for specific performance of the sale and purchase agreement, on which the caveat was based. The respondents sought costs, which the applicants opposed, arguing that they would not have been in the position of having to apply to remove the caveat if the first respondent had taken steps to apply for specific performance earlier. The court had to decide whether to award costs to the respondents or reserve the decision until the outcome of the substantive dispute was known.

The court considered that costs generally follow the event, but the judge retains discretion. In this case, the court considered that costs should be reserved rather than fixed now. The court held that there were two reasons for reserving costs. The first was that the applicants had been left in the position of being unable to deal with their property while the first respondent had done nothing to advance matters towards a proper resolution of the obvious dispute between them. The second reason was that the dispute would ultimately involve a significant credibility contest between the applicants and the third respondent. If the applicants prevailed at trial, any costs fixed now would need to be re-visited. The court considered it preferable for both parties that costs be reserved and fixed when the outcome of the substantive dispute was known.

The court decided to reserve the decision on costs until the outcome of the substantive dispute was known. The court considered that it was not appropriate to fix costs at this stage, as the applicants had been left in the position of being unable to deal with their property while the first respondent had done nothing to advance matters towards a proper resolution of the obvious dispute between them. The court also considered that the dispute would ultimately involve a significant credibility contest between the applicants and the third respondent. The court considered it preferable for both parties that costs be reserved and fixed when the outcome of the substantive dispute was known.

The court did not make any final orders in this case. The decision was made to reserve the decision on costs until the outcome of the substantive dispute was known.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established