IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-2015
[2022] NZHC 1793
IN THE MATTER
AND
of the Land Transfer Act 1952 IN THE MATTER
of Caveat No.12091076.2 and Caveat No.12091076.1
BETWEEN
SAM KHALESI and SHAHIN KHAYAMI
Applicants
AND
LESLIE PHILLIP LANE
First Respondent
FAST PARK DEVELOPMENTS LIMITED
Second Respondent
Hearing: On the papers Appearances:
A Gilchrist for the Applicants
CFL Godinet for the Respondents
Judgment:
25 July 2022
COSTS JUDGMENT OF ASSOCIATE JUDGE SUSSOCK
This judgment was delivered by me on 25 July 2022 at 4pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors/Counsel:
Churton Hart & Divers Ltd, Auckland Henley-Smith Law, Auckland
A Gilchrist, Auckland CFL Godinet, Auckland
KHALESI v LANE & ANOR [2022] NZHC 1793 [25 July 2022]
Introduction
[1] The applicants seek costs in respect of their successful application for Caveats not to lapse until further order of the Court.
[2] In my decision dated 13 April 2022, I recorded that, as the successful party, the applicants were entitled to costs.1 I further recorded that prior to filing the application to sustain the caveats, the applicants had proposed to the respondents that the parties proceed directly to the substantive proceedings with steps taken to sustain the caveats in the meantime. I advised that my preliminary view was that there was clearly a caveatable interest and that this would have been an appropriate course.
[3] I asked the parties to confer and attempt to agree costs. If that was not possible, the parties were to file memoranda.
[4] Unfortunately, the parties were unable to agree and costs memoranda have now been filed.
Costs claimed
[5] The applicants seek, as a minimum, 2B costs of $13,264.50 together with disbursements of $1,533. In addition, they submit that an uplift of 25 per cent pursuant to r 14.6 of the High Court Rules 2016 is justified.
[6]Rule 14.6 relevantly provides:
14.6 Increased costs and indemnity costs
…
(3)The court may order a party to pay increased costs if –
(b)the party opposing costs has contributed unnecessarily to the time or expense of the proceeding or step in it by –
…
(ii)taking or pursuing an unnecessary step or an argument that lacks merit; or
(iii)failing, without reasonable justification, to admit facts, evidence, documents, or accept a legal argument;
1 Khalesi v Lane [2022] NZHC 787 at [69].
[7] The applicants submit that there was always a caveatable interest and that the proceedings were therefore unnecessary. They rely on their initial offer to the respondents to proceed straight to substantive proceedings with orders by consent to sustain the caveats. A draft of the statement of claim in the substantive proceedings was provided to the respondents on 6 October 2021 to which there was no response. The application to sustain the caveats was therefore filed together with separate substantive proceedings seeking specific performance on the same date.
[8] The applicants submit that because they filed substantive proceedings at…
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CaseChat Overview and Summary
The legal issues the court had to decide were whether the proceedings were unnecessary and if the respondents had acted unreasonably by opposing the applicants' application to sustain the caveats. The court found that the applicants had proposed a sensible course to proceed directly to the substantive proceedings, which would have been an appropriate course. The respondents opposed the application without proper grounds, leading to unnecessary costs. The court considered the opposition as misconceived and that the respondents were putting themselves at risk of increased costs by maintaining the opposition despite the applicants' offer to reach the substantive trial with minimal cost.
The court decided that a 25 per cent uplift was appropriate in the circumstances, as the respondents had acted unreasonably and unnecessarily opposed the application. The opposition was misconceived, and the applicants had a clear caveatable interest. The court awarded the applicants costs on a 2B basis with a 25 per cent uplift, totalling $16,580.63, plus disbursements of $1,533. The respondents were ordered to pay the applicants' costs.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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