Khalesi v Lane - [2022] NZHC 1793

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…

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 Khalesi v Lane

Details

AGLC: Khalesi v Lane [2022] NZHC 1793
Case: [2022] NZHC 1793
Decision Date: 25 July 2022

CaseChat Overview and Summary

The case of Khalesi v Lane involved an application for costs in relation to the maintenance of caveats. The applicants, Sam Khalesi and Shahin Khayami, sought costs from the respondents, Leslie Phillip Lane and Fast Park Developments Limited. The applicants successfully argued that the caveats should not lapse until further order of the Court. They claimed 2B costs of $13,264.50, disbursements of $1,533, and a 25 per cent uplift, totalling $16,580.63. The respondents argued that costs should be reserved pending the determination of the substantive proceedings or, alternatively, fixed at 2B with no uplift.

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