Tailor v Westpac New Zealand Limited

[2024] NZHC 1325

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-2290

[2024] NZHC 1325

BETWEEN

BEENA TAILOR AND JYOTIN TAILOR

Appellants

AND

WESTPAC NEW ZEALAND LIMITED

Respondent

Hearing:	On the papers at Auckland
Judgment:	24 May 2024

JUDGMENT (NO.2) OF POWELL J

[Costs]

This judgment was delivered by me on 24 May 2024 at 12.00 pm.

Pursuant to R 11.5 of the High Court Rules.

…………………..

Registrar/Deputy Registrar

BEENA TAILOR AND JYOTIN TAILOR v WESTPAC NEW ZEALAND LIMITED [2024] NZHC 1325 [24 May 2024]

[1]                  On 19 April 2024 I dismissed an appeal by Beena and Jyotin Tailor against two decisions of the District Court striking out their claims against Westpac New Zealand Limited (“Westpac”) and awarding costs.1

[2]                  As Westpac had sought indemnity costs against Mr and Mrs Tailor in the event that the appeals were dismissed, I issued timetable directions for the filing of submissions on costs and confirmed that I would make my decision on the papers.2

The application for costs

[3]                  In accordance with my directions both parties have now filed memoranda. Westpac has confirmed it seeks indemnity costs pursuant to  r  14.6(4)(e)  of  the High Court Rules 2016, which provides that the Court may order a party to pay indemnity costs if the party claiming costs is entitled to indemnity costs under a contract or deed.

[4]                  As I accepted in my substantive judgment upholding the District Court’s decision imposing indemnity costs on Mr and Mrs Tailor on the strike-out of their claims, Westpac has a contractual right to recover its actual and reasonable costs from Mr and Mrs Tailor pursuant to cl 2.3 of the mortgage memorandum which forms part of their mortgage to Westpac.3

[5]                  The costs sought by Westpac total $15,523. Counsel for Westpac submit that these costs are reasonable for the following reasons:

(a)They are less than $2,000 more than the 2B scale costs calculation of

$13,981.50 as provided for in the High Court Rules. The calculation of scale costs is set out Schedule 2 below.

(b)There were a number of additional steps and workstreams required as a result of Mr and Mrs Tailor’s approach. A second callover appearance and additional memoranda were required to clarify the scope of the appeal. Westpac, as respondent, had to prepare a casebook because the version filed and served by the appellants included only their material. The appellants also filed and served a second, unscheduled, set of submissions in support of their appeal.

1      Tailor v Westpac New Zealand Ltd [2024] NZHC 877.

2 At [19].

3 At [16].

(c)Westpac’s solicitors’ resourcing of the matter was appropriate given the points raised and Mr and Mrs Tailor’s approach. In this respect, carriage of the matter was given to a Senior Associate, with Partner oversight and use of unqualified juniors for administrative tasks and initial drafting.

[6]                  Mr and Mrs Tailor have not commented on either the basis for or the amount of costs claimed by Westpac. Instead the memorandum they have filed simply revisits their substantive submissions at the hearing of the appeal, including maintaining that neither have been made bankrupt. Given this position it is not a surprise that the orders that Mr and Mrs Tailor seek on Westpac’s application for costs are cancellation of two mortgagee sales and reimbursement from Westpac in the total sum of $410,000.

Discussion

[7]                  Having considered Westpac’s application for indemnity costs, including specifically cl 2.3 of the mortgage memorandum, and noting my findings on the substantive appeal I agree with counsel for Westpac that the amounts claimed are reasonable in the circumstances and it is appropriate to make the order for costs as sought. For completeness I record the relief sought by Mr and Mrs Tailor is utterly misconceived and there is no basis for making such orders.

Decision

[8]                  Beena Tailor and Jyotin Tailor are jointly and severally liable to pay Westpac New Zealand Ltd costs in the sum of $15,523.

Powell J