Joshi v Eesha Holdings Limited

[2015] NZHC 3062

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