Hosseini v Hosseini

[2021] NZHC 2667

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1170

[2021] NZHC 2667

UNDER

Section 339(1) Property Law Act 2007

BETWEEN

MAHSA HOSSEINI and MAHYA HOSSEINI

Applicants

AND

MONA HOSSEINI and MEHDI SHIRASEB

Respondents

Hearing:	On the papers
Counsel:	C A Murphy for the applicants J D Noble for the respondents
Judgment:	6 October 2021

JUDGMENT OF JAGOSE J

[Costs]

This judgment was delivered by me on 6 October 2021 at 3.00pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Counsel/Solicitors:

C A Murphy, Barrister, Auckland Gregory Simon Law, Auckland Boyle Mathieson, Auckland

HOSSEINI v HOSSEINI [2021] NZHC 2667 [6 October 2021]

[1]        My 6 September 2021 judgment, making orders for sale and division of proceeds equally between the parties and reserving costs, nonetheless observed:1

In my preliminary view, no party can claim comprehensively to be successful in this proceeding necessarily brought to achieve its outcome, and the family context of the proceeding also justifies avoiding continued grounds for dispute, such that costs should lie where they fell — that is, legal costs be borne by the party incurring them.

[2]        The applicants — pointing to the respondents’ rejection of settlement offers dated 24 and 31 August 2021, contended to give the respondents a better outcome than transpired at trial — now seek 2B costs and disbursements calculated in the amount of $15,433. The respondents ‘concede’ such rejection is to render them liable for scale costs incurred thereafter, 2B scale costs being calculated at $6,214, but propose 1A or 2A scale costs respectively at $1,749 and $2,629.

[3]        The materiality of unaccepted settlement offers is not to liability for scale costs on steps taken in the proceeding, which follows on being the unsuccessful party,2 but for increased costs on steps taken after the offer’s unaccepted making.3 Nonetheless, the applicants do not seek increased costs but 2B scale costs.

[4]        However, I continue to have difficulty identifying the applicants’ “success” for costs’ purpose. In particular, as also variously was argued at trial in support of claims to compensation and occupation rent,4 the settlement offers were founded on returns of differing capital contributions, and the respondents’ payment of occupation rent, before equal division of the balance of sale’s proceeds. But my decision made no such allowance.5

[5]I thus am driven to confirm my preliminary view. Costs lie where they fell.

—Jagose J

1      Hosseini v Hosseini [2021] NZHC 2317 at [22].

2      High Court Rules 2016, r 14.2(1)(a).

3      Rule 14.6(3)(b)(v).

4      Hosseini v Hosseini, above n 1, at [12].

5      At [18]–[19].