Lee v Lee

[2020] NZHC 400

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-001648

[2020] NZHC 400

BETWEEN

ERROL JAMES LEE

Plaintiff

AND

GREGORY JAMES LEE and SUSAN GAY

LEE in their capacities as trustees of the GREG LEE TRUST

Defendants

Hearing:

On the papers

Counsel:

C Murphy for the Plaintiff

D A Cowan and R Thompson for the Defendants

Judgment:

5 March 2020

JUDGMENT OF WOOLFORD J

[As to costs]

This judgment was delivered by me on Thursday, 5 March 2020 at 11:30 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:           Gregory Simon Law, Lawyers, Auckland

Doug Cowan, Barristers and Solicitors, Auckland

Counsel:            C Murphy, Auckland

R Thompson, Auckland

LEE v LEE & ANOR [2020] NZHC 400 [5 March 2020]

[1]                  On 19 August 2019 the plaintiff filed proceedings, including an application for an interim injunction. By memorandum dated 21 August 2019, the defendants acknowledged that “interim interim” orders were necessary to preserve the status quo and to prepare the application for hearing. These “interim interim” orders were accordingly made and the Court allocated a half day hearing on 4 December 2019 for the hearing of the interim injunction application.

[2]                  By joint memorandum dated 27 November 2019, the defendants withdrew their opposition to the plaintiff’s application for an interim injunction and, accordingly, the hearing set down for 4 December 2019 was vacated. The “interim interim” orders were extended to the hearing of the substantive claim. Costs however remained at issue and timetable directions were made for the exchange of memoranda on costs. The Court advised that costs would be determined on the papers after receipt of the parties’ memoranda.

[3]                  The plaintiff seeks a total of $3,368 in accordance with scale costs in the High Court Rules for filing the application for interim injunction, a memorandum for first call of the application, and appearance at the first call of the application together with a filing fee. The defendants submit that costs should be reserved and determined at the substantive trial, or in the alternative, if the Court awards costs in favour of the plaintiff, enforcement of any cost orders should be stayed until the substantive proceedings have been determined.

[4]                  Having considered the matter, I am of the view that the issue of costs should be determined in accordance with orthodox principles. These include the principle of the party who fails with the respect to interlocutory application should pay costs to the party who succeeds and,1 as far as possible, the determination of costs should be predictable and expeditious.2

[5]                  On 16 August 2019, prior to the issue of proceedings, the solicitor for the plaintiff invited the defendants in an open letter to agree the interim relief position,

1      High Court Rules 2016, r 14.2(a).

2      Ibid, r 14.2(g).

which they have now conceded. The defendants were notified that the application for an interim injunction would seek orders that:

(a)The plaintiff be permitted to remain in residence at the flat pending further order of the Court or agreement between the parties;

(b)The trust be restrained from selling the property pending further order of the Court or agreement between the parties; and

(c)The trust be permitted to apply any rental income from leasing the upper portion of the property at its discretion pending further order of the Court or agreement of the parties to mitigate any loss that may occur.

[6]This is substantially the position which has now been agreed.

[7]                  In the circumstances, the defendants are to pay the plaintiff the sum of $3,368 for scale costs. The plaintiff’s actual costs far exceed that sum. The sum is payable immediately.

Woolford J