Nicol v Ali

[2022] NZHC 3438

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2022-404-000555

[2022] NZHC 3438

BETWEEN

PERCIVAL ARTHUR BRIAN NICOL

Plaintiff

AND

BRETT ALI

Defendant

Hearing:	on the papers
Appearances:	NLK Stone for the Plaintiff Mr Ali (Defendant) in person
Judgment:	15 December 2022

JUDGMENT OF TAHANA J

[Costs]

This judgment was delivered by me on 15 December 2022 at 10.00am Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:

Snedden & Associates, Auckland Doug Cowan Barrister, Auckland Copy to: Defendant

NICOL v ALI [Costs] [2022] NZHC 3438 [15 December 2022]

Introduction

[1]                 In my judgment dated 20 September 2022,1 I ordered that the lease between Mr Nicol and Mr Ali is cancelled and directed Mr Nicol to file a revised schedule of:

(a)all costs and expenses incurred by Mr Nicol (including legal costs and expenses) in remedying Mr Ali’s default in paying the Rates’ Arrears (as defined in my judgment); and

(b)all costs, charges and expenses for which Mr Nicol has become liable in consequence of, or in connection with, Mr Ali’s failure to pay the Rates’ Arrears.

[2]                 Mr Nichol has now filed a revised schedule and this judgment now determines the quantum of costs to be awarded to Mr Nicol. Mr Ali was granted leave to respond to the revised schedule and has responded by indicating he wishes to stay the execution of my 20 September 2022 judgment. Mr Ali has since filed an application to stay enforcement of my judgment pending the outcome of his appeal to the Court of Appeal. That application is yet to be determined. In the interim, I am required to determine the issue of costs to be awarded to Mr Nicol.

Costs

[3]                 Mr Nicol sought to recover costs in accordance with the terms of the lease dated 1 August 2007 (the Lease), as follows:

10.3.1 … the Lessor may elect to remedy at any time without notice any default by the Lessee under this Lease and whenever the Lessor so elects all costs and expenses incurred by the Lessor (including legal costs and expenses) in remedying such default shall be paid by the Lessee to the Lessor forthwith on demand.

…

11.1 … the Lessee shall pay –

…

1      Nicol v Ali [2022] NZHC 2414.

(b) all costs, charges and expenses for which the Lessor shall become liable in consequence of or in connection with any breach or default by the Lessee in the performance or observance of any of the terms, covenants and conditions of this Lease.

[4]                 I requested a revised schedule of costs as Mr Nicol had initially sought to recover all costs, including costs relating to the purported rent review. I rejected the claim for increased rent under the purported rent review.

[5]The revised schedule filed on behalf of Mr Nicol reduces the costs claimed by

$864.50 (being $600 in legal fees and  $264.50 for  disbursements).  Counsel  for  Mr Nicol says these are the costs relating to the rent review. I have reviewed the invoices provided and no deduction has been made for any litigation costs associated with preparation of Mr Nichol’s claim for the increased rent arising from the purported rent review, preparation of evidence in relation to that issue and attendance at the hearing. I do not accept that the costs attributable to the rent review aspect of the claim are limited to the small amount of $600 plus disbursements.

[6]                 Mr Nicol’s affidavit filed in support, the submissions and the hearing of the application included issues relevant to the purported rent review. While there were some overlapping issues, I consider that at least 25 per cent of the costs would have been incurred only because of the claim regarding the rent review. In these circumstances, it is appropriate that the amount of costs able to be recovered is reduced.

[7]                 Accordingly, the costs claimed of $19,825.09 should be reduced by 25 per cent to $14,868.82.

Result

[8]                 The Court hereby orders, pursuant to s 251 of the Property Law Act 2007 that Mr Ali pay to Mr Nicol:

(a)$14,868.82, being solicitor-client costs;

(b)$1,081.51, being disbursements; and

(c)$4,906.46, being interest on rates arrears in accordance with [47(d)] of my judgment dated 20 September 2022.

Tahana J