Mangaroa 26N2 Trust v Huata - [2023] NZHC 50

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2019-441-000018

[2022] NZHC 50

BETWEEN
MANGAROA 26N2 TRUST

Plaintiff

AND

WI HUATA AND DONNA HUATA

Defendants

AND

P C RAIKES LIMITED

Interested Party

Hearing: On the papers

Appearances:

L A Foley for Plaintiff

F C Monteiro and K T van der Plas for Defendants and Interested Party

Judgment:

1 February 2023

JUDGMENT OF GRICE J

(Costs)

[1] The defendants seek costs on an application for stay of enforcement of a judgment pending appeal. The stay was the subject of a consent order following a joint memorandum filed by the parties dated 3 August 2022.

[2] The order for stay, in terms of the joint memorandum reserved the question of costs. A direction was made for the filing of an application for costs by 16 September 2022. Subsequently the parties agreed to extend the date to 30 November 2022. An application was filed on that date. The application for costs is opposed by the successful judgment plaintiff who in turn seeks costs on the application for costs by the defendants.

MANGAROA 26N2 TRUST v HUATA [2022] NZHC 50 [1 February 2023]

[3] The substantive judgment dated 8 February 2022 granted orders in favour of the plaintiff landlord as follows:1

(a) Declaring that the lease expired on 30 September 2019 and the tenant was holding over without consent; and
(b) For the plaintiff’s possession of the land comprised and described in Certificate of Title HBV4/1351, being 17.6999 hectares more or less,
Lot 2 Deposited Plan 1996

[4] The defendants lodged an appeal to the Court of Appeal and an application for security for costs. The notice of appeal is dated 7 March 2022. The judgment plaintiff sought an increased security for costs. That application has not yet been determined by the Court of Appeal.

[5] The plaintiff issued a notice to the defendants to vacate the property on 4 April 2022, expiring on 6 May 2022. No approach to the plaintiff was made by the defendants before they filed the application for stay of execution of the judgment on 26 April 2022.

[6] The plaintiff opposes the application for costs on the stay application on the following main grounds:

(a)The stay was granted by consent on conditions. The defendants did not approach the plaintiff with a view to agreement before applying for the stay;

(b)In support of the stay by the defendants, Mr Huata in his affidavit dated 26 April 2022, indicated there was insufficient time given to move the personal chattels, equipment and machinery trees and livestock within the period given to vacate the property which was from the date of the issue of the notice of 4 April 2022, to 6 May 2022. No mention was

1 Mangaroa 26NN2 Trust v Huata [2022] NZHC 113 (substantive judgment)

made in that of removal of buildings which the defendants now say is required.

(c)an application for stay of the costs order had been made. There…

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: [2023] NZHC 50
Decision Date: 1 February 2023

CaseChat Overview and Summary

In the case of Mangaroa 26N2 Trust v Huata, the defendants sought costs in relation to a stay of enforcement of a judgment pending appeal. The substantive judgment had been granted in favour of the plaintiff, the Mangaroa 26N2 Trust, declaring that the lease had expired and ordering possession of the land. The defendants, Wi Huata and Donna Huata, had appealed the decision and applied for a stay of enforcement of the judgment pending the appeal. The stay was granted by consent on certain conditions, but the question of costs was reserved.

The legal issues before the court included the principle that costs should follow the event and the discretion of the court in exercising its power to award costs. The court considered the positions taken by the parties during negotiations for the stay, the history of the defendants' compliance with the lease terms, and the likely success of the appeal. The court found that the defendants were not entitled to costs on the stay application as the plaintiff had been justified in seeking conditions due to the defendants' poor compliance and payment history. The court also found that the plaintiff was entitled to costs on its opposition to the defendants' application for costs on the stay.

The court dismissed the defendants' application for costs on the stay application and granted the plaintiff's application for costs on its opposition to the defendants' application for costs on the stay on a 2B basis together with reasonable disbursements. The court exercised its discretion based on the principled approach and the rules set out in the High Court Rules and the relevant schedules. The court noted that early engagement between the parties could have potentially saved the taking of all the steps for which costs are now sought.
In conclusion, the court found that the defendants were not entitled to costs on the stay application as the plaintiff had been justified in seeking conditions due to the defendants' poor compliance and payment history. The court also found that the plaintiff was entitled to costs on its opposition to the defendants' application for costs on the stay. The court exercised its discretion based on the principled approach and the rules set out in the High Court Rules and the relevant schedules. The defendants' application for costs on the stay application was dismissed, and the plaintiff's application for costs on its opposition to the defendants' application for costs on the stay was granted on a 2B basis together with reasonable disbursements.

Orders