Ubaid v Ubaid

[2020] NZHC 2397

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-282

[2020] NZHC 2397

UNDER

the Property Law Act 2007

IN THE MATTER

of an application for sale of property and division of sale proceeds

BETWEEN

ALI JABBAR UBAID

Applicant

AND

KARAR JABBAR UBAID

First respondent

SATTAR JABBAR UBAID

Second respondent

Hearing:

On the papers

Appearances:

T Homes for the applicant

D S Kumar for the first respondent No appearance for second respondent

Date of judgment:

15 September 2020

JUDGMENT OF JAGOSE J

[Costs]

This judgment was delivered by me on 15 September 2020 at 2.30pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Solicitors:

Vallant Hooker & Partners, Auckland Gibbs Mills Livingstone, Auckland

UBAID v UBAID - Costs [2020] NZHC 2397 [15 September 2020]

[1]    After a breakdown in family relations, the applicant (“Ali”) sought orders under s 339 of the Property Law Act 2007 for sale of a property in Auckland’s Hunua, owned by him and his respondent brothers (“Karar” and “Sattar”), and division of its proceeds between them in equal shares.

[2]    On the day of hearing, the parties substantially resolved matters between themselves, although apportionment of proceeds remains at issue. Left to my own devices, I would have reserved costs for determination at the conclusion of the proceeding, which is adjourned until after 28 February 2021 to monitor settlement. But the parties agree I should now determine “[t]he issue of the quantum of the [a]pplicant’s costs”.

[3]    Pointing to Karar’s intransigent approach to the proceeding (including his failure to respond to a settlement offer), and his late participation in it and its belated partial resolution, Ali claims to be the successful party and claims increased costs at 2B scale uplifted by 10 per cent in the amount of $17,555.00. Karar disputes the orders sought would have been granted, having regard to s 342’s mandatory considerations, and particularly the comparative hardship that would be caused to the parties by either its making or refusal, and seeks his costs in the amount of $8,922.50 (alternatively, each party bear their own expenses in the proceeding).

[4]    I do not consider the parties’ agreement necessarily to reflect Ali’s success in the proceeding. Ali’s application appears to be to sell a family home, which he vacated on terms, later cancelled by him for substitution by its proposed sale.  Neither do      I consider the agreement to reflect Karar’s or Sattar’s success. There is considerable room to contemplate, as previously I have done,1 I may not have been prepared to exercise my discretion in any party’s favour:2

Under this new broad discretionary regime it is appropriate for a judge to stand back from the submissions and proposals of the parties, and consider what, on an overview, taking into account the relevant considerations, is the most just and practical way through the impasse before the court, even if the answer may not reflect the orders sought by the parties. By definition the cases that

1      Lo v Lo [2020] NZHC 1614.

2      Bayly v Hicks [2012] NZCA 589, [2013] 2 NZLR 401 at [32]. See also Yozin v New Zealand Guardian Trust Company Ltd [2019] NZCA 202 at [45]–[60]; Thomas Gibbons Section 339 of the Property Law Act 2007: a tragedy of the commonly owned? (2017) 25 Waikato Law Review 59.

come before the court arise where parties are locked into an ownership position which they cannot resolve because of the positions they have taken, and where a way out may be by a path neither has to that point contemplated.

[5]    I therefore order costs lie where they fell: that is, be borne by the party incurring them.

—Jagose J