Lip v Pandey - [2025] NZHC 2504

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-241

[2025] NZHC 2504

UNDER rule 4.24(a) of the High Court Rules 2016

BETWEEN

ALADDIN BIN MOHAMMED LIP and NORCHIL BINTI ABDUL RAHIM

Plaintiffs

AND

PRAKASH PANDEY

Defendant

AND

BAKER TILLY STAPLES RODWAY as

liquidators of Viaduct Quays Hotel Limited Non-Party

ASB BANK LIMITED

Non-Party

Hearing: On the papers

Appearances:

SVA East and S L Cahill for the Plaintiffs W Revell and V Hansen for the Defendant

Judgment:

29 August 2025

JUDGMENT OF GAULT J

(Costs following trial adjournment)

This judgment was delivered by me on 29 August 2025 at 4:00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:
Ms SVA East and Ms S Cahill, Bell Gully, Auckland
Mr W Revell and Ms V Hansen, Farry Law Ltd, Auckland Copy to:
Mr G Neil and Mr R Hindriksen, Meredith Connell, Auckland

LIP and RAHIM v PANDEY [2025] NZHC 2504 [29 August 2025]

[1] This matter was referred to me as Civil List Judge following the defendant’s interlocutory application dated 14 April 2025 for an order adjourning the two-week trial set to begin on 1 September 2025.

[2] Following minutes, a telephone conference and receipt of written submissions, on 16 May 2025 I vacated the fixture and related timetable orders, and made directions to determine the plaintiffs’ claim for indemnity or increased costs on the papers.

[3]The parties have been unable to agree on costs.

[4] The plaintiffs seek indemnity costs of $156,246.97 comprising its actual legal costs (and disbursements of $559.13) in relation to their various steps to pursue the defendant to provide compliant discovery and in relation to their opposition of the defendant’s application to adjourn the trial. Alternatively, the plaintiffs seek increased costs and disbursements of $19,559.63 representing a 50 per cent uplift on 2B scale costs.

[5]The defendant submits the parties should bear their own costs.

[6]Thus, the parties could not be further apart.

Applicable principles

[7] The applicable costs principles are well settled. One general principle is that costs follow the event, including on interlocutory applications.1 The position is different where an adjournment is the result of an indulgence. Following adjournment of a trial under r 10.2 of the High Court Rules 2016, costs are often awarded against the party seeking an adjournment even though the application could be characterised as successful. This is almost invariably the case where that party’s fault has led to the need for an adjournment, but costs may be awarded even where the applicant is not at fault, recognising the inevitable additional consequential cost to other parties. This also reflects the Court’s approach to wasted costs (referred to below).

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

[8] Another general principle is that costs should be assessed by applying the appropriate daily recovery rate to the time considered reasonable for each step reasonably required,2 that is, applying the scale in the High Court Rules.…

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 Lip v Pandey

Details

AGLC: Lip v Pandey [2025] NZHC 2504
Case: [2025] NZHC 2504
Decision Date: 29 August 2025

CaseChat Overview and Summary

In Lip v Pandey, the plaintiffs sought indemnity or increased costs from the defendant in relation to various steps taken to pursue the defendant to provide compliant discovery and their opposition of the defendant's application to adjourn the trial. The defendant submitted the parties should bear their own costs. The court determined that the plaintiffs were entitled to costs on the adjournment application, as the adjournment was required due to the defendant's outstanding discovery. The court assessed the scope of the plaintiffs' costs application, finding that it extended to the various steps they had taken to pursue the defendant to provide compliant discovery. The court found that the defendant's conduct in relation to these steps warranted an award of increased costs, but not indemnity costs.

The court ordered the defendant to pay the plaintiffs' costs and disbursements of $19,559.63 in respect of the identified steps. The court found that a 50 per cent uplift on the identified steps was appropriate due to the unsatisfactory circumstances of the case, but noted that an increase of 50% on scale costs should grant the costs-claiming party a fair recovery for the step unnecessarily forced on it. The court also noted that any greater recovery than that would mean that the party paying costs is contributing to the other party's choice of special counsel. The court found that it remained open to vary an order for costs if satisfied subsequently that the original order should not have been made, which could be addressed after substantive determination.

Orders