Youssef v Maiden

[2020] NZHC 995

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-2524

[2020] NZHC 995

IN THE MATTER OF

AND

the Judicial Review Procedure Act 2016

IN THE MATTER OF

the Construction Contracts Act 2002

BETWEEN

AHMED AMIN MAHMOUD YOUSSEF (AS TRUSTEE OF THE JAMESSEF TRUST) AND STEPHYN ST JAMES

Applicants

AND

RICHARD LINTON MAIDEN

First Respondent

BESPOKE DESIGN AND BUILD LIMITED

Second Respondent

Hearing:

14 May 2020

Appearances:

M R Taylor for Applicants

K W Kemp and O J Towle for Second Respondent

Judgment:

14 May 2020

COSTS JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 14 May 2020 at 12 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: ..................................

YOUSSEF v MAIDEN [2020] NZHC 995 [14 May 2020]

[1]                 I issued a judgment in this matter on 20 December 2019, allowing the applicants’ claim for judicial review.1

[2]                 I have since received submissions from the applicants and second respondent, Bespoke, regarding costs.

[3]                 As the successful party, the applicants seek an award of costs and all usual disbursements against Bespoke. Additionally, the applicants seek an award of indemnity, alternatively increased, costs.

[4]                 Bespoke submits costs should lie where they fall, given the basis on which I allowed the applicants’ application for judicial review.

[5]                 I am satisfied the applicants are entitled to an award of costs, having succeeded. However, this is not a case for an award of indemnity costs, which are reserved for truly exceptional circumstances.

[6]                 An award of increased costs is warranted if conduct on the part of the unsuccessful party has, as a matter of fact, increased the costs incurred by the successful party. However, it is not clear to me how the failure by Bespoke or its solicitors, Martelli McKegg, to disclose that Mr Maiden had been engaged to assist another client of Martelli McKegg’s on three matters as opposed to one increased the applicants’ costs.

[7]                 I discussed this point with counsel for the applicants, Mr Taylor, today in the course of a telephone conference with him and other parties, as to which see my minute of today’s date.

[8]                 Having considered the matter, Mr Taylor advised me he could not take the argument for increased costs any further than he had in his written submissions.

[9]Given that, I am not persuaded to make an award of increased costs.

1      Yousef v Maiden [2019] NZHC 3471.

[10]              I make an award of costs in favour of the applicants against Bespoke on a 2B basis plus all usual disbursements. There is leave to apply in the event of dispute.

[11]              In its submissions, Bespoke sought an order that Mr Maiden and/or Martelli McKegg should indemnify Bespoke in respect of any costs awarded against it. Such application must be made in the usual way, ie by way of an interlocutory application. Bespoke is to file and serve any such application by 4 pm, 29 May 2020.

Peters J

Solicitors:           Maria Taylor, Auckland

Anthony Harper, Auckland

Counsel:            M R Taylor, Auckland

Copy for:           Wotton + Kearney, Auckland

McElroys, Auckland