Black v Body Corporate 125491 - [2025] NZHC 3076

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2025-404-39

[2025] NZHC 3076

UNDER Parts 18 and 30 of the High Court Rules 2016 and the Judicial Review Procedure Act 2016

IN THE MATTER OF

a judicial review of a body corporate under the Unit Titles Act 2010

BETWEEN

MICHAEL CARSON BLACK

Applicant

AND

BODY CORPORATE 125491

Respondent

Hearing: On the papers

Counsel:

Applicant in person

J P Wood for Respondent

Judgment:

16 October 2025

JUDGMENT OF O’GORMAN J

[as to costs]

This judgment was delivered by me on 16 October 2025 at 11 am pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

…………………………………

Solicitors:
Court One, Auckland

BLACK v BODY CORPORATE 125491 [2025] NZHC 3076 [16 October 2025]

Introduction

[1] This judgment determines the issue of costs, following my decision to grant the respondent’s application to strike out the proceeding.1 The parties have failed to agree on the issue of costs.

[2]The issues for determination are:

(a)whether costs should be awarded on the standard High Court scale (category 2B), or whether there are grounds for increased or indemnity costs; and

(b)if indemnity or increased costs are appropriate, what quantum should be awarded.

Legal principles

[3] The Court has a general discretion to award costs under r 14.1 of the High Court Rules 2016. Subject to that discretion, r 14.2 provides the principles to be applied in most cases:

(a)Under r 14.2(1)(a), the party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds.

(b)Under r 14.2(1)(b), an award of costs should reflect the complexity and significance of the proceeding. For those purposes, r 14.3 provides for three categories of proceeding (1, 2 or 3).

(c)Rule 14.2(1)(c) provides that costs should generally be assessed by applying the appropriate daily recovery rate to the time considered reasonable for each step reasonably required in relation to the proceeding or interlocutory application. The reasonable determination of time is set out in r 14.5 by band (A, B or C).

1 Black v Body Corporate 125491 [2025] NZHC 2401.

(d)Rule 14.2(1)(f) provides that an award of costs should not exceed the actual costs incurred by the party.

[4] The above position of limiting a losing party’s liability for costs to scale in most cases is supported by access to justice considerations.2 Other objectives are that the determination of costs should be predictable and expeditious.3

[5] Rule 14.6 provides for increased and indemnity costs. Relevantly, rr 14.6(3) and (4) provide:

(3) The court may order a party to pay increased costs if—

…

(b)the party opposing costs has contributed unnecessarily to the time or expense of the proceeding or step in it by—

…

(iii) failing, without reasonable justification, to admit facts, evidence, documents, or accept a legal argument; or

…

(4) The court may order a party to pay indemnity costs if—

(a)the party has acted vexatiously, frivolously, improperly, or unnecessarily…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NZHC 3076
Decision Date: 16 October 2025

CaseChat Overview and Summary

In the case of Black v Body Corporate 125491, the High Court was tasked with determining the issue of costs following the decision to strike out the proceeding. Michael Carson Black, the applicant, had initiated a judicial review of a body corporate under the Unit Titles Act 2010 against Body Corporate 125491, the respondent. The primary issues before the court were whether costs should be awarded on the standard scale or if there were grounds for increased or indemnity costs, and if so, what the quantum should be.

The court considered the principles governing costs under the High Court Rules 2016, noting that the party who fails in a proceeding should generally pay costs to the party that succeeds. The court also highlighted that costs should reflect the complexity and significance of the proceeding, and generally should not exceed the actual costs incurred. Under the rules, increased or indemnity costs may be awarded in exceptional circumstances, such as when a party has acted vexatiously or frivolously. The respondent argued for indemnity costs, contending that Mr Black's proceeding was brought for an ulterior motive and lacked merit. In contrast, Mr Black argued that the proceeding was reasonable given the circumstances and that the respondent had not shown clear cause for indemnity costs.

After thorough analysis, the court determined that while the threshold for indemnity costs was not met, an uplift was appropriate to reflect that the arguments lacked merit and that Mr Black had contributed unnecessarily to the time and expense of the proceeding. The court found a 50 per cent uplift on the standard costs to be appropriate, resulting in a total award of $26,366.25 in costs plus disbursements of $1,066.09, along with interest on these amounts from the date of judgment until full payment.

Orders