Tololi v Johnson - [2025] NZHC 1620

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2025-404-000367

[2025] NZHC 1620

UNDER the District Courts Act 2016

IN THE MATTER

of an appeal against a decision of the District Court at Auckland

BETWEEN

MICHAEL TOLOLI

Appellant

AND

ELIZABETH JANE JOHNSON

Respondent

Hearing: (On the papers)

Judgment:

17 June 2025

COSTS JUDGMENT OF VENNING J

This judgment was delivered by me on 17 June 2025 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Kent Legal, Auckland
Douglas M A Burgess, Auckland

Counsel: S Carey, Auckland

TOLOLI v JOHNSON [2025] NZHC 1620 [17 June 2025]

Introduction

[1] This is an appeal against an award of costs made in the District Court. Elizabeth Johnson sued Michael Tololi in the District Court at Auckland. Ms Johnson had taken an assignment of the lessor’s rights under a lease with Linwood Park Stud Limited (LPSL) as lessee. Mr Tololi had been a guarantor of LPSL’s obligations under the lease. In a substantive judgment issued on 26 September 2024, Judge D J Clark entered judgment in favour of Ms Johnson for rental and outgoings under the lease and High Court costs previously awarded against Mr Tololi together with interest.1 The judgment was however, for less than the sum initially sought by Ms Johnson.

[2] As to costs, the Judge noted that Ms Johnson was seeking indemnity costs under the terms of the lease but then observed:2

Given the results and relative success each of the parties have enjoyed, it seems the obvious position costs should be lie where they fall.

[3] Nevertheless the Judge directed that if counsel could not agree costs they were to exchange memoranda and he would deal with the matter on the papers.

District Court costs judgment

[4] Ms Johnson sought indemnity costs relying on the provisions of the lease. The indemnity sum sought was $35,980.55 excluding GST. Mr Tololi submitted that no costs should be awarded to Ms Johnson but, because he had made a Calderbank offer on 18 April 2024, two months before the fixture, costs should be awarded in his favour. Counsel for Mr Tololi submitted scale costs from the date when the offer was rejected with an uplift of 50 per cent was appropriate.

[5] The Judge acknowledged that Ms Johnson was prima facie entitled to indemnity costs under the lease. However he referred to the principles discussed in Frater Williams & Company Limited v Australian Guarantee Corporation (NZ)

1 Johnson v Tololi [2024] NZDC 15932.
2 At [134].

Limited and Exuberant Limited v Quinovic Property Management Limited.3 The Judge then first assessed whether the costs sought by way of indemnity costs were reasonable. He considered that a large portion of the time spent at the hearing was required to overcome the difficulties caused by Ms Johnson’s absence and failure to give evidence to prove her claim. Accordingly he reduced the amount of the indemnity costs claimed…

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.

Continue reading Tololi v Johnson

Details

AGLC: Tololi v Johnson [2025] NZHC 1620
Case: [2025] NZHC 1620
Decision Date: 17 June 2025

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, the case of Tololi v Johnson involves an appeal against a decision of the District Court at Auckland. Elizabeth Jane Johnson sued Michael Tololi in the District Court for rental and outgoings under a lease, with Mr. Tololi acting as a guarantor for the lessee, Linwood Park Stud Limited (LPSL). The substantive judgment, issued on 26 September 2024, found in favour of Ms. Johnson for the claimed rental and outgoings, as well as previously awarded High Court costs and interest, though for a lesser amount than initially sought. The central issue in this appeal is the award of costs made by the District Court.

The legal issues before the court were whether the District Court Judge erred in determining the successful party before awarding costs, in refusing to award increased costs to Mr. Tololi for Ms. Johnson's refusal to accept a Calderbank offer, and in awarding Ms. Johnson costs following the rejection of the Calderbank offer. The appeal court assessed the District Court's discretion in awarding costs, considering if there was an error of law, irrelevant considerations were taken into account, or if the decision was plainly wrong.

The court found that the District Court Judge was entitled to determine the successful party after considering the overall proceedings and that the Judge's reduction of indemnity costs to a reasonable figure and the further discount to account for Mr. Tololi's success were within his discretion. The court also found that the Judge was entitled to reduce the costs award for Ms. Johnson's rejection of the Calderbank offer, considering the additional time spent on unsuccessful matters by Mr. Tololi. The appeal court concluded that the District Court Judge's assessment of costs was appropriate, and therefore dismissed the appeal.

The court ordered that the appeal is dismissed and that Ms. Johnson is entitled to costs on the appeal, to be awarded on a reasonable solicitor/client basis against Mr. Tololi for the steps associated with this appeal.

Orders