Ubaid v Al-Dakhil

[2020] NZHC 3483

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-1870

[2020] NZHC 3483

UNDER

the Property Relationships Act 1976

IN THE MATTER

of an application for an order that a notice of claim not lapse

BETWEEN

IMAN JABBAR UBAID

Applicant

AND

HUSSEIN ALLAWI AL-DAKHIL

Respondent

Hearing:	On the papers
Counsel:	D S Kumar for the Applicant T Homes for the Respondent
Judgment:	21 December 2020

JUDGMENT OF GAULT J

This judgment was delivered by me on 21 December 2020 at 4:00 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

Solicitors:

Mr S Khalesi and Mr D S Kumar, Gibbs Mills Livingstone, Auckland Ms T Homes and Mr J B Murray, Vallant Hooker & Partners, Auckland

UBAID v AL-DAKHIL [2020] NZHC 3483 [21 December 2020]

[1]                 On 7 December 2020 I made a final order by consent that the applicant’s notice of  claim not  lapse pending  determination of separate  Family Court proceedings.    I encouraged the parties to agree costs, setting out the general position, but said that if costs could not be agreed the parties were to file memoranda and I would determine costs on the papers.

[2]                 The applicant seeks costs of $2,283.75, being her actual costs and disbursements which are lower than 2B scale costs.

[3]                 The respondent submits that the Court should not exercise its discretion to award costs. The respondent was being pragmatic in agreeing that the caveat not lapse pending Family Court proceedings. It is submitted that the respondent should not be penalised by way of a costs order for being pragmatic and resolving matters by consent, particularly when there is no certainty that this Court would have been prepared to sustain the notice. Also, if the applicant had filed her application in the Family Court, costs would have been less – scale costs would have been only $508.

[4]                 As signalled in my earlier minute, an originating application is a discrete proceeding and costs should ordinarily follow the event notwithstanding that the underlying claim remains to be determined in a separate and substantive proceeding.1 Of course, costs are at the discretion of the Court but the nature of the caveat/notice of claim proceeding is not itself a reason to reserve let alone refuse costs.

[5]                 I acknowledge the interim and final orders that the notice of claim not lapse were made by consent. But the applicant only seeks costs for filing the application and supporting affidavits. I consider she is entitled to costs for that initial step, without needing to make an assessment as to the prospect of orders if there had been no consent. Her actual costs are only 35 per cent of 2B scale costs. I am not persuaded that the costs should be reduced by reference to scale costs in the Family Court.

1      Ding v Ai [2020] NZHC 858 at [4].

Result

[6]                 The applicant is entitled to costs of $1,693.75 plus disbursements of $590, totalling $2,283.75.

Gault J