Kuoch v Ganda - [2022] NZHC 1150

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-2178 [2022] NZHC 1150

UNDER Section 261 of the Property Law Act 2007 and Part 19 of the High Court Rules 2016

IN THE MATTER OF

A lease of premises at 27 Chartwell Avenue, Glenfield, Auckland

BETWEEN

JOHNLEE HUA MINH KUOCH

Applicant

AND

MAHESH GANDA, MANI GANDA and

RAMAN DIYAR GANDA as trustees of the Morar Family Trust

Respondent

On the papers: At Auckland

Judgment:

24 May 2022

JUDGMENT OF POWELL J

[on Costs]

This judgment was delivered by me on 24 May 2022 at 3.30 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors/Counsel:
Fortune Manning, P O Box 4139, Auckland
(B Rooney, Vulcan Building Chambers, Auckland)

Thomas and Co, New Lynn, Auckland
(L Ponniah, P O Box 55022, Eastridge, Auckland)

KUOCH v GANDA & Ors (Costs) [2022] NZHC 1150 [24 May 2022]

[1] This judgment on costs follows my earlier decision granting the application of John Lee Kuoch pursuant to s 261(1)(a)(i) of the Property Law Act 2007 to renew the lease of the premises where his laundromat business is located.1

[2] Having granted the application sought I also ordered costs against the respondents as trustees of the Morar Family Trust, the owner of the premises on which Mr Kuoch’s business is located (“the trustees”). In the event costs could not be agreed I set out a timetable for the filing of submissions. As there was no agreement and submissions have been filed, I now determine the costs issue.2

The position of the parties

[3] On behalf of Mr Kuoch, Mr Rooney seeks indemnity costs against the trustees totalling $21,900 plus GST, together with disbursements of $1,409.99, a total sum of
$26,594.99. In Mr Rooney’s submission the trustees acted unreasonably in opposing the application and in support of that proposition relies on the various comments made by me in the course of my first judgment.

[4] The trustees oppose any award of costs notwithstanding I have already determined that costs are properly payable, essentially for the same reasons advanced in the hearing of the substantive application. In addition, Mr Ponniah on behalf of the trustees, submits with reference to the decision of the Court of Appeal in Cunningham v Butterfield3 that as the granting of relief to Mr Kuoch was an indulgence it thereby provides a basis for costs either lying where they fall or otherwise tempers the imposition of increased or indemnity costs as sought by Mr Kuoch. The effect of this submission is that if costs are awarded these should be imposed on a 2B basis.

Discussion

[5] Having considered the submission of counsel against the conclusions reached in my substantive judgment, I confirm that while costs are payable by the trustees,

1 Kuoch v Ganda [2022] NZHC 452.
2 At [38].
3 Cunningham v Butterfield [2014] NZCA 213.

these are appropriately limited to scale costs on a 2B basis…

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 Kuoch v Ganda

Details

AGLC: Kuoch v Ganda [2022] NZHC 1150
Case: [2022] NZHC 1150
Decision Date: 24 May 2022

CaseChat Overview and Summary

In the case of Kuoch v Ganda, the applicant, John Lee Kuoch, sought to renew a lease of premises at 27 Chartwell Avenue, Glenfield, Auckland, which houses his laundromat business. The respondents, Mahesh Ganda, Mani Ganda, and Raman Diyar Ganda as trustees of the Morar Family Trust, opposed the application. The High Court of New Zealand, Auckland Registry, granted the application, and subsequently, an issue arose concerning the costs incurred during the proceedings. The applicant sought indemnity costs against the trustees, while the trustees opposed the imposition of any costs.

The legal issue before the court was whether the trustees should be liable for costs on an indemnity basis, as sought by the applicant, or whether the costs should be limited to scale costs on a 2B basis, as argued by the trustees. The trustees contended that the court's decision in Cunningham v Butterfield suggested that costs should lie where they fall in cases where the applicant receives an indulgence. The applicant argued that the trustees acted unreasonably by opposing the application, which justified an award of indemnity costs.

The court held that while costs were payable by the trustees, they should be limited to scale costs on a 2B basis, rather than the indemnity costs sought by the applicant. The court distinguished the present case from Cunningham v Butterfield, noting that the circumstances in this case did not warrant the imposition of indemnity costs. The court found that the trustees' opposition, while misconceived, did not amount to bad or very unreasonable behaviour. The court concluded that the nature of the application, necessitated by an oversight on the part of the applicant, justified the imposition of scale costs against the trustees.

The final orders of the court were that the trustees are to pay the applicant $10,994 in costs, together with $1,409.99 in disbursements, a total of $12,403.99.

Orders