Body Corporate 172108 v Manchester Securities Ltd
[2017] NZHC 1252
•9 June 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2009-404-006868 [2017] NZHC 1252
BETWEEN BODY CORPORATE 172108
Applicant
AND
MANCHESTER SECURITIES LIMITED
37th Respondent
Hearing: 26 April and 6 June 2017 Appearances:
TJG Allan and S F Powrie for Applicant
M C Harris for RespondentJudgment:
9 June 2017
COSTS JUDGMENT OF FOGARTY J
This judgment was delivered by Justice Fogarty on
9 June 2017 at 11.30 a.m., pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors:
Grove Darlow & Partners, Auckland
Gilbert Walker, Auckland
Copy to:T J G Allan, Auckland
BODY CORPORATE 172108 v MANCHESTER SECURITIES LIMITED [2017] NZHC 1252 [9 June 2017]
Introduction
[1] This judgment was circulated in draft after the hearing on 26 April. I heard from counsel on 6 June. The judgment up to paragraph [15] has had no significant amendment, from the draft.
[2] This is a costs dispute, potentially without end. In my judgment delivered on
3 March 20171 I granted an application under the Unit Titles Act 1972 to vary a scheme to repair a high-rise apartment building, which scheme was put in place by four judgments of this Court all delivered by Heath J.2
[3] On 22 February 2017 in a minute I observed that the question of costs was becoming hideously complex and invited the parties to settle. They have not. There are four unresolved memoranda on costs before the Court, three by the applicant:
(a) Dated 16 November 2016; (b) Dated 27 January 2017; and (c) Dated 14 February 2017.
And one memorandum by the thirty-seventh respondent (Manchester), dated 21
April 2017. I also received further submissions from the applicant, dated 26 April.
Any justification to vary 2011 costs judgment of Heath J?
[4] The Body Corporate’s memoranda fall into two parts. The first memorandum
invites the Court to overturn the 2011 costs judgment of Heath J.3
1 Body Corporate 172108 v Manchester Securities Ltd [2017] NZHC 329.
2 Body Corporate 172108 v Meader (No 1) HC Auckland, CIV-2009-404-6868, 3 March 2010, Body Corporate 172108 v Meader (No 2) HC Auckland CIV-2009-404-6868, 19 August 2010, Body Corporate 172108 v Meader (No 3) HC Auckland CIV-2009-404-6868, 31 August 2010 and Body Corporate 172108 v Meader (No 4) HC Auckland CIV-2009-404-6868, 10 February
2011.
3 Body Corporate 172108 v Meader (No 4) HC Auckland CIV-2009-404-6868, 10 February 2011.
[5] The first issue is whether or not the allocation of costs awarded by Heath J in judgment number 4, delivered on 10 February 2011, applies and, if so, to what extent. The result of that judgment was as follows:
[17] I direct that the solicitor and own client costs and disbursements of both the Body Corporate and MSL shall be regarded as costs of the scheme, with the consequence that they will be paid out of levies based on unit entitlements.
[6] The timeframe for the remediation of the building, as envisaged by the parties and Heath J went wildly awry. In 2013 the Body Corporate applied to vary the remediation scheme approved by Heath J.
[7] The Body Corporate, the successful party in the judgment I delivered on
3 March 2017,4 submits that if the High Court orders by Heath J in judgment number
4 were to stand without modification, it would have the extraordinary consequence of the Body Corporate (inter alia, all other owners) paying 88.12 per cent of both Manchester’s and the Body Corporate solicitor and own costs. It is submitted this equates to an order that the applicant unit owners pay their own costs plus over 75 per cent of the respondent’s solicitor and own client costs as costs of the scheme.
[8] Accordingly, the Body Corporate seeks an order that Manchester is to bear its own solicitor and own client costs for the whole of the s 48 scheme proceeding and that Manchester’s solicitor and own client costs and disbursements are not to be pooled as costs of the scheme. The consequence of applying the Act in this way would mean that Manchester would pay 100 per cent of its own solicitor client costs and by application of the Unit Titles Act 1972, Manchester will pay 11.88 per cent of the Body Corporate’s actual solicitor and client costs.
[9] Not surprisingly, this application is opposed by Manchester. Manchester argues the Body Corporate is bound by judgment number 4 of Heath J until the date of the application to further vary the scheme, which was lodged on 18 March 2013.
[10] Mr Harris, for Manchester, argues that there is no jurisdictional basis for this
Court to set aside the High Court February 2011 costs order. The order was not
appealed. The application to vary the scheme did not extend to it. That it is too late to spring this new issue after the trial on the application to vary the scheme.
[11] Mr Powrie, for the Body Corporate submits that included in the 18 March
2013 application to vary the scheme was an application to set aside the costs award in judgment number 4. He relies on two general pleadings for “such further or other order as the Court thinks fit” and that Manchester pays the Body Corporate’s costs. The first of those applications is commonly known as the “Lord’s Prayer”. The second pleading reads normally as limited to the costs of the current application. Both pleadings were with the intention of obtaining a Court judgment varying the scheme ab initio, the scheme being that both the solicitor and own client costs and disbursements of both Body Corporate and Manchester be regarded as costs of the scheme with the consequence they will be paid out of levies based on unit
entitlements.5
[12] Mr Harris accepts that his client has been on notice since the filing of the current application to vary the scheme in March of 2013 and accepts only that new orders of costs can be put into place to have effect from the commencement of the proceedings. But Mr Harris reiterates that this Court has no jurisdiction to set aside the award by Heath J in 2011 in respect of costs.
[13] When Heath J was dealing with the costs of the application before him, in judgment number 4, he did not apply the High Court Rules on costs. Rather, he took advantage of s 48(7) of the Unit Titles Act 1972. Section 48(7) of the Act empowers the Court to “make such order for payment of costs as it thinks fit”. The Act places emphasis on the discretion to award costs. That must be seen in the context of the need for a scheme which is designed to benefit all individual proprietors.
[14] These proceedings are still being conducted under the Unit Titles Act 1972. They have been brought in reliance on s 48(6) of the Act:
The Court may from time to time cancel, vary, modify or discharge any order made by it under this section.
And s 48(7):
On any application under this section the Court may make such order for payment of costs as it thinks fit.
[15] I am minded to think that in these unusual jurisdictional circumstances this Court has the power as part of exercising the statutory jurisdiction to vary the scheme (under s 48(6)) to vary the order of costs, using s 48(7), as Heath J did, to by-pass the Rules. The difficult issue is the date from which the variation should take effect.
[16] Mr Harris, for Manchester, agreed that this Court does have the jurisdiction to amend the order of costs pursuant to s 48(6).6 He argues, however, that due to a combination of time and lack of particulars in pleading, it would be unjust to do so. His substantive point is that the Body Corporate has already recovered its available legal costs from the Auckland Council.
[17] The Body Corporate had sued the Council in the usual way to recover the costs of remedying the building. But that litigation excluded the penthouse. Manchester separately sued the Council and took the case through the Weathertight Homes Authority. The Body Corporate settled its claim against the Auckland Council for $6 million, in August 2011, after Heath J’s costs award in February 2011.
[18] Mr Harris, for Manchester, argued the $6 million included recovery of Body Corporate’s legal costs for having settled the scheme of remediation with Manchester. It follows on Mr Harris’ argument that the Body Corporate is attempting double recovery of its losses.
[19] The difficulty with this argument of double recovery of costs is that the point has been not taken hitherto. The $6 million settlement of the Council claim is obviously a negotiated sum. I was told from the Bar that it is not the accumulation of agreed costs, including legal costs. The point advanced now was not taken. The fair result is to recognise that the Body Corporate, except Manchester, sued the Auckland Council via the High Court, and Manchester sued independently. The
costs issues should be kept separate, as I understand they have been. If that outcome requires an amendment of Heath J’s judgment number 4,7 it is so amended relying on s 48(6) and (7).
[20] I move on to these proceedings. I think it is not justifiable to try to draw the distinctions now that were not taken back in 2011. Mr Harris did not, and could not, argue that the Court does not have jurisdiction under s 48(6).
[21] I think the main merit point for Manchester is that they did not have fair notice in the proceedings before me of what the Body Corporate now seeks in the way of costs. The general pleadings, the Lord’s Prayer and the Costs Prayer were insufficient. These prayers are very general claims but I do not think that Manchester Securities Ltd is prejudiced. A more particular claim would have led to the same outcome. I do not see any issue estoppel, let alone any common law res judicata in the preceding judgments.
[22] More importantly, s 48(6) and (7) are drawn in the widest terms. I do not think it is the function of this Court to read them down. In any practical sense I do not think there is any real possibility of double recovery by the Body Corporate. I would be extremely surprised if the single payment of $6 million from the Council covered all the Body Corporate’s costs, including its legal costs. On the probabilities it would not, as settlements out of Court are invariably compromises.
[23] The application to vary the scheme was substantially an application to vary it retrospectively. In these unusual circumstances, I think it would be an injustice not to give effect to the two general pleadings included in the March 2013 application to vary.8 This is because leaving the costs order made in judgment number 4 in place is completely inconsistent with the substantial consequence of the judgment of this Court, varying the scheme.9 This varied scheme is almost completely at odds with
the scheme approved in judgment number 4.
7 Body Corporate 172108 v Meader (No 4) HC Auckland CIV-2009-404-6868, 10 February 2011 at [17].
8 Set out at [10], above.
9 Body Corporate 172108 v Manchester Securities Ltd [2017] NZHC 329.
[24] Justice, however, requires some applications of the direction that the solicitor and own client costs and disbursements of both the Body Corporate and Manchester Securities Ltd shall be regarded as costs of the Scheme.10 To the extent that paragraph [17] of judgment number 4 (dealing with costs) has been applied between the parties by the Body Corporate prior to March 2013, I do not think that those applications should be disturbed.
Costs post-March 2013
[25] However, from 18 March 2013, in my view, it would be quite unjust for Manchester’s legal and client costs in opposition to the application to vary the Scheme, to be allocated pursuant to paragraph [17] of judgment number 4. Therefore, subsequent to 18 March 2013, the general pleadings for relief are sufficient notice for setting aside paragraph [17] of judgment number 4.
[26] I turn now more generally to the just allocation of costs incurred by the parties’ solicitors and experts when attending to the issues raised by the March 2013 application to vary the scheme. In this respect, neither side has sought to by-pass the High Court Rules by taking advantage of s 48(7). So the balance of this judgment is applying the High Court Rules.
Costs under the High Court Rules
[27] There was no suggestion from counsel that costs should not follow the event in the usual way, and so costs fall upon Manchester.
[28] The Body Corporate as applicant, claims costs on a category 2 basis for each step taken in the proceeding. Category 2 is not challenged by the first respondent.
[29] The current dispute as to costs breaks into a number of categories. The dispute is whether or not the steps in the litigation fall within band A, B or C. The
Body Corporate contends that none of them fall under A and rather, that the
10 See above at [10] and Body Corporate 172108 v Meader (No 4) HC Auckland CIV-2009-404-
6868, 10 February 2011 at [17].
classification of each step will be either B or C. The Body Corporate as the successful party has set out tables for each step allocating the band.
[30] In support of the band allocation the Body Corporate has detailed the time spent by solicitors and experts on these separate steps. It has not provided the Court with the costs for that time.
[31] Mr Harris, for Manchester, disputes the admissibility of the time spent by the lawyers. Rather, he insists, and correctly, that it is for the Court, assisted to the extent it can be by counsel, to form a judgment as to the appropriate band for each legal step taken in the proceedings.11
[32] In Commissioner of Inland Revenue v Chesterfield Preschools Ltd, the Court of Appeal cited its earlier decision in Paper Reclaim v Aotearoa International Ltd12 that a blanket assessment for banding is not possible under the High Court Rules.13
The Court noted that where increased costs are being considered the focus must remain on the notional solicitor or counsel, not the actual solicitor or counsel involved or the costs actually incurred by the party claiming costs.14
[33] It follows that in fixing costs, it is not possible for this Court to have regard to the time actually spent or to the actual costs. Therefore I pay no regard to the information filed of time spent.
[34] Rule 14.5 of the High Court Rules 2016 provides that the determination of reasonable time is made by reference to the time allowed for that step in either band A, band B or band C.
[35] Given that neither party can rely on actual time spent on a task or the cost of fees, the task of fixing costs where they are not agreed becomes a particular burden of the trial Judge. The trial Judge, however, has the advantage of having been fully
engaged in the case before delivering judgment.
11 See Commissioner of Inland Revenue v Chesterfield Preschools Ltd [2010] NZCA 400.
12 Paper Reclaim v Aotearoa International Ltd [2007] NZCA 544, (2007) 18 PRNZ 743.
13 Chesterfield Preschools, above n 11, at [161].
14 At [164].
[36] Predictably, the bands sought by the successful party are a mixture of 2B and
2C bands. Manchester’s counsel submits that the “normal” band B allowance is
sufficient for most items, and some should be A.
[37] As noted above the successful party applying for costs cannot rely on the time actually spent on the work or on the fees actually charged. Nonetheless, the Rules have been interpreted as imposing an onus on the party when arguing for band C. The Court otherwise can generically assess a case as 2B. How is such a burden vis-à-vis band C discharged ignoring time spent and fees charged?
[38] In Paper Reclaim the Court of Appeal held:15
If a party wants other than band B, that party must demonstrate why “a
normal amount of time for the particular step” would be insufficient: see r
48B(2).
[39] The 2016 reprint equivalent to to r 48B(2) is r 14.5(2). The gloss appearing in the Court of Appeal judgment, just quoted, does not appear in r 14.5(2), which reads:
14.5 Determination of reasonable time
(1) For the purposes of rule 14.2(c), a reasonable time for a step is—
(a) the time specified for it in Schedule 3; or
(b) a time determined by analogy with that schedule, if
Schedule 3 does not apply; or
(c) the time assessed as likely to be required for the particular step, if no analogy can usefully be made.
(2) A determination of what is a reasonable time for a step under subclause (1) must be made by reference—
(a) to band A, if a comparatively small amount of time is considered reasonable; or
(b) to band B, if a normal amount of time is considered reasonable; or
(c) to band C, if a comparatively large amount of time for the particular step is considered reasonable.
[40] Considering the party cannot rely on the time they actually spent, nor on the fees charged, the onus on the party claiming band C must be by way of detailing the scale of the exercise, thus allowing the Judge to form an opinion whether band C is indeed applicable.
[41] When forming that opinion, as I understand the Court of Appeal jurisprudence, it is not possible for the Judge to draw on his or her own experience at the Bar as that would make the findings variable. It therefore requires the party to detail the steps taken, for example, by informing the Court as to the number of documents discovered or for the trial Judge to draw on his or her knowledge of the case to examine the scale of work done, preparation of affidavits and submissions and extent of the written material filed.
[42] The goal is to reach a banding decision for each step with which any Judge,
whatever that Judge’s professional background may be, would agree.
[43] Accepting these limits, I invited counsel to accept a fixture at which I would hear arguments for and against a particular disputed step. Both counsel declined this invitation. No doubt each did not want to burden their clients with another lengthy attendance in Court. Both counsel invited me to take a “robust approach”.
[44] The Body Corporate’s argument for costs is spread over the three memoranda.16 I have decided the most reliable way to cover all the disputes is to work through the Manchester submissions in reply which respond to these memoranda, coupled with consideration of the appellant’s submissions.
Filing original application
[45] The Body Corporate seeks a band C allowance of six days for preparing the original application to vary the scheme. As already recorded in paragraph [25] of this judgment, the Court of Appeal in Paper Reclaim requires the party to demonstrate why a normal amount of time for the particular step would be insufficient.
[46] Manchester’s counsel, Mr Harris, notes that the application was a modest four pages, supported by only two affidavits, one from Mr McLeod (3.5 pages), the other from Mr Thompson of 32 pages, and much of that material had been traversed in the course of the recently-completed proceedings related to a statutory demand issued on Manchester.17
[47] I keep in mind that the onus for establishing band C lies upon the applicant. In my opinion the overlapping of material with the statutory demand litigation precludes a finding that it is band C. Therefore the filing of the original application, item 37, has a band B categorisation.
No recovery for subsequent use of affidavits
[48] I also accept that affidavits sworn and filed in pursuit of the unsuccessful opposition to Manchester’s discovery application cannot be the basis for recovering costs because of the use of those affidavits for a different purpose later in the proceeding. I agree that no authority was cited for this proposition and it is contrary to principle.
Classification of the second amended application for variation
[49] After the commencement of the application to vary the scheme, there were further pleadings, and an amendment to the variation application in 2014 following time spent inspecting Manchester’s documents, and affidavits, preparing affidavits in reply. Costs were sought at scale 2B on the amended variation application. This is granted.
Other affidavits
[50] Manchester argues that “the plethora of affidavits and the extraordinary amount of time apparently spent on them was seriously disproportionate. Some of those affidavits like those of Ms Parker and Mr Graham had little or no probative value given the issues Your Honour had to determine.”
[51] It is always easy to criticise the need for affidavits after the determination. The Body Corporate is entitled to costs on preparation of all the affidavits, for I am satisfied that at all times it was guided by competent counsel and counsel had to make prudent decisions as to the desirability of affidavits. Filing affidavits is not a step lightly undertaken.
[52] All supporting affidavits are claimed on the 2B rate. That claim is granted. [53] Indeed, all items claimed at the rate of 2B are upheld.
[54] That leaves three 2C applications:
(a) Item 20: List of Documents on Discovery (30/06/14); (b) Item 40: Preparation of Written Submissions; and
(c) Item 41: Preparation of Authorities.
[55] The Body Corporate, under item 20, seeks band 2C for the listing of documents. A 2B banding would allow 2.5 days. Manchester’s counsel says the number of documents was some 3,960 and that this was hardly an out of the ordinary number of documents. Regrettably, this is so these days. However, it is manifestly clear that item 20 makes no separate allowance for finding the documents which are to be listed on discovery. So the item 20 “list of documents on discovery” includes the decision that they are discoverable as well as the dictation and production of the description of the document and its insertion in the list. On that basis it has to be 2C as sought, simply because 2B at 2.5 days is insufficient.
[56] The claim for the preparation of written submissions is 2C, as is the preparation of authorities and common bundle. Relying on my familiarity with the volume of material and my use of the written submissions, I am satisfied these are proper claims. So I grant items 40 and 41 are 2C.
[57] Manchester submits that band A (0.2) day allowances are sufficient for the 13 memoranda in respect of which band B allowances are sought. The 2B band for
filing memoranda is a 0.4 allocation of days. The submission was that some memoranda were so brief they could not reasonably have called for a band A allowance of almost half a day.
[58] I do not accept Manchester’s submission. It is an error to assess the amount of professional time spent by the length of the document required to cover a point filed in Court. Any decisions by solicitors and counsel to file a memorandum usually have had a gestation period of consideration of the need for a memorandum. A strong case would need to be made out that the decision and preparation was so simple it was a 2A rate. I leave all memoranda at 2B.
[59] Accordingly, I find that the rates claimed in the schedule to the applicant’s submissions dated 16 November are all granted, except for item 37 which is allocated a 2B band rather than 2C.
Recovery of expert witness fees
[60] This is a dispute as to the ability to claim expert witnesses’ fees as disbursements. This is an expensive item. As Manchester submits, it is more than half of the total cost claim, being $143,741.08 excluding GST.
[61] Manchester relies on r 14.12(2) and (3), which provide a witness’s expenses
are only recoverable if they are necessarily incurred and reasonable in the amount.
[62] Rule 14.12(5) provides:
14.12 Disbursements
…
(5) When considering whether a disbursement paid or payable for an expert witness's fee or expenses is reasonable for the purposes of subclause (2)(d), a Judge or an Associate Judge may—
(a) call for a report or an assessment from a professional organisation or otherwise; and
(b) make any incidental order considered just, including an order as to the cost of that report or assessment.
(Emphasis added.)
[63] I do not regard any of these witnesses as simple fact witnesses, nor do I assume the assistance needed could be undertaken by a non-expert. As the hearing Judge, I had the benefit of the expert witnesses’ calculation and assessments. These were necessary for the determination I had to make. I regard these fees as properly recoverable and that they satisfy the requirement in Rule 14.12(2):
14.12 Disbursements
…
(2) A disbursement must, if claimed and verified, be included in the costs awarded for a proceeding to the extent that it is—
(a) of a class that is either—
(i) approved by the court for the purposes of the proceeding; or
(ii) specified in paragraph (b) of subclause (1);
and
(b) specific to the conduct of the proceeding; and
(c) reasonably necessary for the conduct of the proceeding; and
(d) reasonable in amount. (Emphasis added.)
[64] Accordingly, they are allowed.
Other witness costs issues
[65] Parties to litigation do not engage witnesses lightly. It is always easy to say that there were unnecessary expenses. In my view once the Court accepts that expertise was necessary in order to marshal the argument for an application for a variation, the onus shifts to the losing party to argue for the proposition that fees in fact incurred were not properly incurred. There is some “comment” by Manchester on the extent of recovery of Cove Kinloch’s accounts. This is further explained in
the memorandum on behalf of the 37th respondent in relation to the draft costs
judgment. Manchester has clarified it is not criticising the Cove Kinloch invoices,
but rather the adoption of some of the expenses of Cove Kinloch as expenses in the dispute. For example, it says that invoices raised by Cove Kinloch during the period in which the Body Corporate was seeking a code of compliance certificate for the works to levels 1 to 11, is not claimable as a disbursement of the variation application. Part of the problem seems to be that Manchester has queried the scope of some of the invoices raised by Cove Kinloch and the Body Corporate has refused to respond. I agree in principle that the Body Corporate’s legal advisors should scrutinise each invoice from Cove Kinloch and exclude any attendances outside the scope of the variation application.
[66] There is a challenge to seven accounts billed by the Body Corporate secretary. This may be a mistake. I reserve this question for further consideration by counsel on both sides. Similarly, there may be an error in respect of the Yoeman’s account of 21 December 2015 and that matter is reserved. Otherwise the challenges to the witnesses’ costs claim set out in this table are rejected.
Prepayment of cost of production of documents
[67] Manchester sought discovery of 11 categories of information, not all of which the applicant considered to be relevant but nonetheless agreed to provide. The Body Corporate in a memorandum of 6 April 2014 sought pre-payment of the estimated cost of $11,500 of extracting these documents, costs incurred by its experts, consultants and the Body Corporate manager, before any solicitor or agent’s costs. This proposition was rejected by Moore J. This was an attempt to have Manchester meet the Body Corporate costs up front.
[68] I agree with Manchester that no such pre-discovery costs were justified and that, on the contrary, Manchester is entitled to a 0.2 day credit for its successful resistance. Similarly, no costs are payable in respect of the mentions on 13 August or 5 September 2014.
[69] I agree that band C cannot be justified for the time establishing a system of discovery in electronic format. The High Court Rules and Schedules, which require the parties to confer at the outset of litigation and agree a common electronic protocol, presume that law firms now store documents electronically.
[70] The Body Corporate has sought an allowance for junior counsel. Manchester cite an observation of Williams J in Rowmata Holdings Ltd (In Liquidation) v Hildred, saying:18
Ordering costs for attendance of junior counsel in 2B cases tends to be the exception rather than the norm.
[71] Williams J was following Chambers J’s earlier observation in Nomimoi
Holdings Ltd v Elders Pastoral Holdings Ltd.19
[72] Chambers J, as former Chair of the Rules Committee, had considerable familiarity with the Rules. I accept his comments as to how second counsel used to be involved during the trial in the days before electronic storage of data, when evidence was not exchanged in advance. In the days before word processing, I agree that a junior had an active role handling witnesses during a trial.
[73] The advent of word processing, particularly the pre-trial production of evidence in chief to be read by the witness, has changed the tasks of junior counsel. The greater volumes of retrieved correspondence placed before the Court has created a new role for junior counsel before and at the trial. That is to master the discovery and the bundles of documents so that the senior and the Judge can be referred to the bundle and page number promptly.
[74] In this case, I am quite comfortable that it was a responsible course for Mr
Allan to elect when to have a junior.
[75] I note that at different stages in this litigation, Manchester was represented by two counsel. For example, Mr Harris appeared before Bell AJ with Mr Prewett.20
Still in these proceedings, the Body Corporate senior counsel Mr Allan had a junior,
Ms L Hawes-Gandar, before Katz J.21
18 Rowmata Holdings Ltd (in liq) v Hildred [2014] NZHC 3257 at [19].
19 Nomimoi Holdings Ltd v Elders Pastoral Holdings Ltd (2001) 15 PRNZ 155 at [18].
20 Manchester Securities Ltd v Body Corporate 172108 [2013] NZHC 177.
21 Body Corporate v Manchester Securities Ltd [2013] NZHC 2441.
[76] I am satisfied that this litigation has been a significant financial strain on the Body Corporate and that would have been taken into account in forming a judgment to nonetheless engage a junior. Accordingly, I certify for second counsel.
[77] Before leaving this topic I note that Mr Allan properly informed the Court that there were other authorities with more lenient tests as to junior counsel, citing Roading and Ashphalt Ltd v South Waikato District Council.22
Conclusion
[78] I am not going to attempt to formulate a summary of all the rulings I have made. It is my hope that I have covered all the issues:
(a) The filing of the original application has a band B categorisation.23
(b)There will be no recovery for affidavits sworn and filed in pursuit of the unsuccessful opposition to Manchester’s discovery application.24
(c) Costs are granted on a 2B basis for the second amended application for variation.25
(d)All items claimed at the 2B rate are upheld, including all supporting affidavits.26
(e) All rates claimed in the applicant’s submissions dated 16 November are granted, except item 37, which is allocated a 2B band.27
(f) The claim for witnesses’ fees and disbursements is granted.28
(g) Manchester is entitled to a 0.2 day credit for resisting the Body
Corporate’s claim for costs in April 2014.29
22 Roading and Ashphalt Ltd v South Waikato District Council [2012] NZHC 2243 at [6].
23 See [47] above.
24 See [48] above.
25 See [49] above.
26 See [52] and [53] above.
27 See [59] above.
28 See [60]-[64] above.
(h) No costs are payable in respect of mentions on 13 August and 5
September 2014.30
(i) I certify for second counsel.31
[79] Leave is reserved for either party to pursue any unresolved issues, by further application to the Court.
29 See [67] above.
30 See [67] above.
31 See [76] above.
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