Le Coz Limited v Khan

[2025] NZHC 1770

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2024-404-001513

[2025] NZHC 1770

BETWEEN

LE COZ LIMITED

Plaintiff

AND

MUBASHRA NAHEED KHAN

First Defendant

SHAK TAKMEER KHAN

Second Defendant

on the papers
Counsel:	P Dale KC & N Saunders for the Plaintiff A Grant for the First & Second Defendants
Judgment:	1 July 2025

JUDGMENT OF TAHANA J

[Recall of judgment in respect of costs]

This judgment was delivered by me on 1 July 2025 at 2.30pm.

Pursuant to Rule 11.5 of the High Court Rules.

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:

Paul Dale KC, Auckland Wynn Williams, Auckland

Bankside Chambers, Auckland Broadway Law, Auckland

LE COZ LIMITED v KHAN [Recall of judgment in respect of costs] [2025] NZHC 1770 [1 July 2025]

Introduction

[1]                 Le Coz Ltd (Le Coz) applies to recall my judgment dated 26 March 2025 in respect of costs,1 or, in the alternative, to stay execution of that judgment. At [19] of my judgment, I determined that the defendants were entitled to costs on a 2B basis.

[2]                 The defendants oppose the application for recall and say the appropriate recourse available to Le Coz is to appeal the decision.

[3]                 The parties have confirmed that the application for recall can be determined on the papers and submissions have been filed.

Should the judgment in respect of costs be recalled?

[4]                 A Judge may recall a judgment given orally or in writing at any time before a formal record of it is drawn up and sealed.2 The Court in Horowhenua County v Nash (No. 2) identified the three categories of cases where a judgment may be recalled:3

(a)where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority;

(b)where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; or

(c)where for some very special reason justice requires that the judgment be recalled.

[5]The third category is relevant here.

[6]                 Counsel for Le Coz submitted that the judgment in respect of costs should be recalled because the parties did not have an opportunity to be heard in relation to costs. Le Coz argues that costs should be reserved or lie where they fell. Le Coz is concerned

1      Le Coz Limited v Khan [2025] NZHC 666.

2      High Court Rules 2016, r 11.9.

3      Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.

that the defendants will proceed to enforce costs now, which will result in the issuing of a statutory demand and a dispute as to whether Le Coz is entitled to set off any adverse costs award against any amount owed to it if successful in the substantive summary judgment application.

[7]                 Counsel for the defendants submitted that the correct recourse available to Le Coz is to appeal the decision. Further, the defendants submitted that as the successful party, they were entitled to 2B costs and there is no basis to recall the judgment or stay enforcement.

[8]                 This Court in Sipka Holdings Ltd v Merj Holdings Ltd accepted that where the parties had not addressed an aspect of the judgment at the hearing and should have been given an opportunity to do so, the case fell within the third category being a special reason why justice requires that the judgment be recalled.4

[9]                 The parties did not address the Court in relation to the issue of costs at the hearing. Le Coz has now advanced arguments as to why costs should be reserved or lie where they fell. The defendants have advanced submissions as to why it was open to this Court to award 2B costs.

[10]             I accept that the parties were entitled to be heard in relation to costs and that extends to the issue of whether costs should be awarded now or reserved. Reserving costs will preserve the parties’ respective positions while the summary judgment application is determined. The alternative is that if the judgment is not recalled, further unnecessary costs may be incurred if the defendants seek to enforce costs now and Le Coz seeks to rely on a right of set off. I consider that justice requires that the judgment be recalled so that the issue of costs is determined after determination of the summary judgment application.

4      Sipka Holdings Ltd v Merj Holdings Ltd [2015] NZHC 3073 at [13].

Result

[11]             For the reasons above, the application for recall of paragraph [19] of the judgment is allowed. The judgment is recalled and paragraph [19] is amended so that costs are reserved.

Tahana J