YOUSSEF v MAIDEN [2020] NZHC 995
Applicants were entitled to a costs award as the successful party; however indemnity costs were declined because the circumstances were not truly exceptional, and increased costs were declined because the applicants did not demonstrate that the second respondent's alleged non‑disclosure had, as a fact, increased...
Source-derived case information.
- Citation
- [2020] NZHC 995
- Parties
- Applicant: Ahmed Amin Mahmoud Youssef (as trustee of the Jamessef Trust); Applicant: Stephyn St James; First Respondent: Richard Linton Maiden; Second Respondent: Bespoke Design and Build Limited
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 14 May 2020
- Procedural Posture
- Judicial Review / Costs Determination
- Outcome
- Applicants' costs application allowed in part against second respondent Bespoke Design and Build Limited; costs awarded on a 2B basis plus all usual disbursements; indemnity and increased costs declined; leave granted for interlocutory application by Bespoke for indemnity against third parties.
- Legal Topics
- Judicial Review, Construction Contracts Act 2002, Costs Awards, Indemnity Costs, Increased Costs
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ahmed Amin Mahmoud Youssef (as trustee of the Jamessef Trust)
Applicant
Stephyn St James
Applicant
Richard Linton Maiden
First Respondent
Bespoke Design and Build Limited
Second Respondent
Procedural Posture
Judicial Review / Costs Determination
Legal Issues
- 1 Are the applicants entitled to costs after successful judicial review?
- 2 Should indemnity costs or increased costs be awarded?
- 3 Did the second respondent's alleged non-disclosure increase the applicants' costs?
Ratio Decidendi
Applicants were entitled to a costs award as the successful party; however indemnity costs were declined because the circumstances were not truly exceptional, and increased costs were declined because the applicants did not demonstrate that the second respondent's alleged non‑disclosure had, as a fact, increased their costs; costs awarded on a 2B basis plus usual disbursements; leave granted for the second respondent to bring an interlocutory application for indemnity against Mr Maiden and/or Martelli McKegg by 4 pm 29 May 2020.
Court Disposition
Applicants' costs application allowed in part against second respondent Bespoke Design and Build Limited; costs awarded on a 2B basis plus all usual disbursements; indemnity and increased costs declined; leave granted for interlocutory application by Bespoke for indemnity against third parties.
Orders
- Costs awarded to applicants against Bespoke Design and Build Limited on a 2B basis plus all usual disbursements.
- Indemnity costs not awarded.
Full Case Text
Judgment text and source record
1 paragraphs
YOUSSEF v MAIDEN [2020] NZHC 995 [14 May 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2018-404-2524[2020] NZHC 995IN THE MATTER OFANDthe Judicial Review Procedure Act 2016IN THE MATTER OF the Construction Contracts Act 2002BETWEEN AHMED AMIN MAHMOUD YOUSSEF (ASTRUSTEE OF THE JAMESSEF TRUST) ANDSTEPHYN ST JAMESApplicantsAND RICHARD LINTON MAIDENFirst RespondentBESPOKE DESIGN AND BUILDLIMITEDSecond RespondentHearing: 14 May 2020Appearances: M R Taylor for ApplicantsK W Kemp and O J Towle for Second RespondentJudgment: 14 May 2020COSTS JUDGMENT OF PETERS JThis judgment was delivered by Justice Peters on 14 May 2020 at 12 pmpursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate: ..................................[1] I issued a judgment in this matter on 20 December 2019, allowing theapplicants' 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 usualdisbursements against Bespoke. Additionally, the applicants seek an award ofindemnity, alternatively increased, costs.[4] Bespoke submits costs should lie where they fall, given the basis on which Iallowed 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 fortruly exceptional circumstances.[6] An award of increased costs is warranted if conduct on the part of theunsuccessful party has, as a matter of fact, increased the costs incurred by thesuccessful party. However, it is not clear to me how the failure by Bespoke or itssolicitors, Martelli McKegg, to disclose that Mr Maiden had been engaged to assistanother client of Martelli McKegg's on three matters as opposed to one increased theapplicants' costs.[7] I discussed this point with counsel for the applicants, Mr Taylor, today in thecourse of a telephone conference with him and other parties, as to which see my minuteof today's date.[8] Having considered the matter, Mr Taylor advised me he could not take theargument 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 2Bbasis 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 MartelliMcKegg should indemnify Bespoke in respect of any costs awarded against it. Suchapplication 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 JSolicitors: Maria Taylor, AucklandAnthony Harper, AucklandCounsel: M R Taylor, AucklandCopy for: Wotton + Kearney, AucklandMcElroys, Auckland