Body Corporate 183930 v Chua

[2017] NZHC 96

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-000073 [2017] NZHC 96

UNDER

The Unit Titles Act 2010

IN THE MATTER

of an Originating Application for Orders Establishing a Scheme under Section 74 of the Unit Titles Act 2010

BETWEEN

BODY CORPORATE 183930
First Applicant

SYNERGISTIC INVESTMENTS LIMITED

Second Applicant

AND

MUI KEE CHUA First Respondent

OTHER RESPONDENTS
As set out in Schedule One to the

Application

Hearing:

On the papers

Counsel:

D Bigio QC for Applicants

J Heatlie and J Wood for Fifty Sixth, Sixty Sixth, Seventy Sixth and Eighty Third Respondents

V Burns for Fiftieth Respondent
No appearance for other Respondents

Judgment:

8 February 2017

JUDGMENT OF WYLIE J [COSTS]

This judgment was delivered by Justice Wylie

On 8 February 2017 at 12.00pm Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

BODY CORPORATE 183930 v CHUA [2017] NZHC 96 [8 February 2017]

[1]      I  have  issued  two  judgments  in  relation  to  this  matter.    In  my  interim judgment, dated 3 September 2015, I directed that costs should be dealt with when the scheme sought by the applicants was finally settled.   In my final judgment I approved an amended scheme submitted by the applicants, and held that they were entitled to their reasonable costs and disbursements.

[2]      I have now received memoranda from counsel.

[3]      Mr Bigio, QC for the applicants, accepted that in the interim judgment the applicants were only successful in part, and that the respondents also had a measure of success.   He accepted that costs should lie where they fall in regard to that judgment.

[4]      I am satisfied that this is appropriate.   Both parties shared the burden of success and failure, and permitting costs to lie where they fall does justice to both.

[5]      In respect of the resumed hearing culminating in  the final judgment, the position is rather different.  The applicants were successful.   The fifty sixth, sixty sixth, seventy sixth and eighty third respondents failed in their challenge to the final amended scheme put forward by the applicants.  They were also unsuccessful when they endeavoured to re-litigate matters which had been raised and determined in the interim judgment.

[6]      Mr Bigio seeks costs calculated on a 2B basis, for the total sum of $11,150.

[7]      Mr Wood, on behalf of the relevant respondents, advises that he has no instructions to either oppose or agree to the proposed costs award set out in the applicants’ memorandum.

[8]      I am satisfied that each of the steps taken by the applicants were required, and that the same were taken.   The time claimed and the rate for that time have been appropriately set out in the applicants’ memorandum.  I award costs of $11,150 in favour of the applicants, and against the fifty sixth, sixty sixth, seventy sixth and eighty third respondents. The respondents’ liability is joint and several.

[9]      The applicants are also entitled to their reasonable disbursements.  If there is

any dispute, the same is to be referred to the Registrar.

Solicitors/counsel:

Pidgeon Law/D Bigio, Auckland

Rainey Law, Auckland

Grimshaw & Co, Auckland

Wylie J