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…

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 431
Decision Date: 8 March 2023

CaseChat Overview and Summary

Mockingbird Properties Limited sought costs against Jhim Homes Limited and Lashman Jhim after successfully obtaining freezing orders against the defendants. The plaintiff claimed 2B scale costs on the application for the freezing orders. The defendants did not respond to the plaintiff's memorandum. The court was required to determine whether the plaintiff was entitled to the costs claimed and, if so, what the appropriate scale and category for the proceeding were.

The court found that the proceeding was relatively simple, and it would not be appropriate to classify it as category 1. The application for freezing orders was straightforward and relied on material that had already been prepared for the statement of claim. The court considered several steps in the proceeding could have reasonably been completed in a comparatively confined timeframe, and the application for freezing orders should be classified as band A. The court found the preparation of the bundle of authorities to be modest and awarded half of band A allocation. The court accepted the preparation of the affidavit and written submissions would reasonably have taken a normal amount of time. The court determined the reasonable time for the interlocutory hearing and its preparation amounted to 4.45 days, which at category 2 totalled $10,635.50.

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

Orders