Mockingbird Properties Limited v Jhim Homes Limited

[2023] NZHC 431

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-2242

[2023] NZHC 431

BETWEEN

MOCKINGBIRD PROPERTIES LIMITED

Plaintiff

AND

JHIM HOMES LIMITED

First Defendant

LASHMAN RAM JHIM

Second Defendant

Hearing:

[On the papers]

Counsel:

P Muir for the Plaintiff

Lashman Jhim for the First Defendant and in Person

Judgment:

8 March 2023

JUDGMENT OF HARVEY J

This judgment is delivered by me on 8 March 2023 at 11 am pursuant to r 11.5 of the High Court Rules.

.....................................................

Registrar / Deputy Registrar

Solicitors:           Steindle Williams Legal, Auckland And to:    First Defendant

And to:              Second Defendant (in person)

MOCKINGBIRD PROPERTIES LTD v JHIM HOMES LTD [2023] NZHC 431 [8 March 2023]

Introduction

[1]    On 6 December 2022, I issued judgment in favour of the plaintiffs granting freezing orders over two properties owned by the defendants.1 The plaintiff filed a memorandum on 8 December 2022 claiming 2B scale costs on the application for freezing orders. The defendants were invited to reply within one month, taking into account the holidays.

[2]There has been no reply from the defendants.

Plaintiff’s submissions

[3]    Mr Muir submits that there are no special reasons that would prevent costs being awarded on the application according to the principle in r 14.8(1) of the High Court Rules 2016. Counsel contends that, in relation to r 14.1(a), the defendants have failed to successfully oppose the interlocutory application for freezing orders and so should pay the plaintiff’s costs. Mr Muir argues that scale costs are appropriate in this matter to ensure the predictable and expeditious determination of costs.

Discussion

[4]    The plaintiff has claimed costs at 2B. However, the matter was relatively simple. I am not prepared to determine the category for the proceeding as category 1 because that would apply to all subsequent determinations of costs in the proceeding, including the upcoming summary judgment, unless there are special reasons to the contrary.2 I consider the proceeding as a whole is fairly category 2.

[5]    Even so, I consider several of the steps in the proceeding could have reasonably been completed in a comparatively confined timeframe.3 The application for freezing orders is straightforward and relies on material that had already been prepared for the statement of claim. It should be classified as band A.

1      Mockingbird Properties Ltd v Jhim Homes Ltd [2022] NZHC 3247.

2      High Court Rules 2016, r 14.3(2); and Houghton v Sanders [2013] NZHC 3452.

3      Rule 14.5(2)(a).

[6]    Similarly, the plaintiff has claimed for preparation of the bundle of authorities under item 25 “preparation by applicant of bundle for hearing”. In Deliu v Hong Associate Judge Osborne clarified that this item “relates to the set of relevant documents referred to in r 7.39(3)(d)(i)”.4 The documents referred to are “relevant documents” to be annexed to the synopsis of submissions and a “list of authorities”. The Judge declined to allow costs for a bundle of cases, while allowing photocopying disbursements.5

[7]    In PNL Alliance Ltd v Glenview Holiday Park Ltd Associate Judge Sussock found that where an applicant had prepared a bundle of authorities but not a bundle of documents, half of the item should be awarded as the applicant had completed “half of the task”.6

[8]    On reflection, I prefer to follow the approach of Associate Judge Sussock simply because the situation was quite different in Deliu v Hong where the Judge faced a claim of costs which were patently disproportionate to the proceeding and had to arrive at a just figure.7 I consider the bundle of authorities is modest to begin with, so half of band A allocation is appropriate.

[9]    I accept preparation of the affidavit would have taken a reasonable amount of time to prepare that was quite orthodox. It runs to six pages plus 19 exhibits. I also accept preparation of written submissions would reasonably have taken a normal amount of time, running to 38 paragraphs and covering each legal element in usual depth. Hearing and sealing are allocated the same time whether band A or B.

[10]   Thus, the reasonable time for the interlocutory hearing and its preparation amounts to 4.45 days, which at category 2 totals $10,635.50. I am satisfied the disbursements claimed (filing and sealing fees) are reasonable.

4      Deliu v Hong [2013] NZHC 1934.

5 At [21].

6PNL Alliance Ltd v Glenview Holiday Park Ltd [2021] NZHC 3241. The Judge was referring to item 41 which is of identical wording to item 25 but relates to originating applications.

7      See Deliu v Hong, above n 4, at [18].

Decision

[11]   Jhim Homes Limited and Lashman Jhim are ordered to pay Mockingbird Properties Limited costs of $10,635.50 plus $250 disbursements.

Harvey J