Lothbury Management Limited v Ryan - [2021] NZHC 3011

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-0855

[2021] NZHC 3011

UNDER The Residential Tenancies Act 1986

IN THE MATTER OF

An appeal on a question of law from the District Court under s 119 of the Act

BETWEEN

LOTHBURY MANAGEMENT LIMITED

Appellant

AND

VERENA COLLEEN RYAN AND ROGER CHARLES MACDONALD

Respondents

Hearing: On the papers

Appearances:

M R T Colthart for Appellant P K Cobcroft for Respondents

Judgment:

8 November 2021

JUDGMENT OF PAUL DAVISON J

[Re: Costs]

This judgment was delivered by me on 8 November 2021 at 3pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Grant & Co., Auckland Vodanovich Law, Auckland

LOTHBURY MANAGEMENT LTD v RYAN AND ANOR [2021] NZHC 3011 [8 November 2021]

[1] In a Judgment delivered on 1 October 2021 I dismissed the appeal by Lothbury Management Limited (the appellant) against a decision of the District Court on a question of law under s 119 of the Residential Tenancies Act 1986. The proceedings relate to the appellant’s claim against the respondents for arrears of rent and associated outgoings in relation to their occupation of a residence which was formerly the matrimonial home of Mr Stuart Lobb (who is the sole director of the appellant), and the first-named respondent Ms Verena Ryan. At the conclusion of the Judgment I found that the respondents were entitled to an award of costs on a scale 2B basis and I directed the parties to file costs memoranda.1 This judgment determines the issue of costs, and also addresses the respondents’ application for an award of costs to be made against Mr Lobb personally as a non-party.

2B costs — Approach

[2] Matters relating to costs are at the discretion of the Court,2 which must be exercised on a principled basis.3 The determination of costs, so far as possible, should be both predictable and expeditious.4

[3] Rule 14.2(1)(a) provides that, “the party who fails … should pay costs to the party who succeeds”. The other relevant principles set out in r 14.2(1) are that:

(a)an award of costs should reflect the complexity and significance of the proceeding; and

(b)costs should be assessed by applying the appropriate daily recovery rate to the time considered reasonable for each step reasonably required in relation to the proceeding or interlocutory application.

[4] The successful party is entitled to recover the actual disbursements incurred that were reasonable in amount, reasonably necessary for the conduct of the proceeding, and were specific to the conduct of the proceeding.5

1      Lothbury Management Ltd v Ryan [2021] NZHC 2621 at [54].
2      High Court Rules 2016, r 14.1(1).
3      Huakiwi Copenhagen Lot 4 Orchard Ltd v Te Moana [2019] NZHC 1582 at [13]; Bi v Westcoast Mining Ltd [2020] NZHC 2940 at [14].
4      High Court Rules 2016, r 14.2(1)(g).
5      High Court Rules 2016, r 14.12. See further A C Beck and others McGechan on Procedure (loose- leaf ed, Thomson Reuters)…

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.

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Details

Case: [2021] NZHC 3011
Decision Date: 8 November 2021

CaseChat Overview and Summary

Lothbury Management Limited, represented by its sole director, Stuart Lobb, appealed a District Court decision to the High Court. The appeal related to a claim for arrears of rent and associated outgoings against Verena Ryan and Roger MacDonald, who had occupied a residence that was formerly the matrimonial home of Mr Lobb and Ms Ryan. The appeal was dismissed, and the respondents were awarded costs on a scale 2B basis. The court was required to determine the appropriate scale for the costs and whether any costs should be awarded to the respondents against Mr Lobb personally, as a non-party. The respondents sought an award of $9,859.00 against the appellant and a non-party costs order against Mr Lobb. The court considered the principles governing non-party costs and noted that such orders are exceptional, requiring the non-party to be given notice of the intention to seek costs against them. The court found that Mr Lobb had not received such notice prior to the filing of the respondents’ costs memorandum and therefore declined the respondents’ application for non-party costs against Mr Lobb. However, the court reserved leave for the respondents to bring a formal application for non-party costs against Mr Lobb if the appellant failed to comply with and pay the order for costs made against it.

The court ordered Lothbury Management Limited to pay the respondents $9,859.00 in costs and disbursements. The court also reserved leave for the respondents to bring an application for non-party costs against Mr Lobb if the appellant failed to comply with and pay the order for costs made against it.

Orders