Body Corporate 185632 v Thadhani

[2012] NZHC 3173

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-3260 [2012] NZHC 3173

UNDER  the Unit Titles Act 1972

IN THE MATTER OF      an Originating Application for orders establishing a scheme under s 48 Unit Titles Act 1972

BETWEEN  BODY CORPORATE 185632

Applicant

ANDSURESH MOHANIAL THADHANI AND URMINA SURESH THADHANI

First Respondents

ANDRICHARD LOSE Second Respondent

ANDHYANG SOOK KWON AND HYUN JOO LEE

Third Respondents

ANDSUZANE JOAN COWAN Fourth Respondent

ANDPHILIP JAMES TOMLINSON Fifth Respondent

ANDTERRY JOHN SKILTON Sixth Respondent

ANDBOSANQUET TRUSTEE LIMITED Seventh Respondent

ANDVINKO PRKUSIC Eighth Respondent

ANDEMMA LOUISE CANNON-DAVIS Ninth Respondent

ANDHOLODECK LIMITED Tenth Respondent

BODY CORPORATE 185632 V THADHANI HC AK CIV-2011-404-3260 [27 November 2012]

ANDYAJIE ZHANG Eleventh Respondent

ANDJOHN CHARLES SCHROEDER AND WAN LEE SCHROEDER

Twelfth Respondents

ANDNICHOLAS CHARLES KORENEFF AND GALINA FILATOVA

Thirteenth Respondents

ANDALLISON MURIEL DOBBIE Fourteenth Respondent

ANDPATRICIA ANN MATHER Fifteenth Respondent

ANDBRIAN RAY DEADMAN Sixteenth Respondent

ANDMICHAEL ROBINSON AND KATHLEEN RUSHWORTH Seventeenth Respondents

ANDFIONA ELIZABETH DE JARDINE Eighteenth Respondent

ANDTRAVIS T DUNBAR AND JACKSON RUSSELL TRUSTEE SERVICES LIMITED

Nineteenth Respondents

ANDWIBER NOEL CHOAT AND LINLEY ANN CHOAT

Twentieth Respondents

ANDHEATHER ANNE JOHNSTON AND RONALD JOHNSTON

Twenty-First Respondents

ANDCOMMUNICATIONS INVESTMENTS LIMITED

Twenty-Second Respondent

ANDBAILEY BEACH INVESTMENTS LIMITED

Twenty-Third Respondent

ANDPETER LAWRENCE WATTS, SONIA GEORGIA WATTS AND ACE TRUSTEE

SERVICES LIMITED Twenty-Fourth Respondents

ANDPHILIP WILLIAM CROW Twenty-Fifth Respondent

ANDDOWNTOWN INVESTMENTS LIMITED

Twenty-Sixth Respondent

ANDWESTPAC NEW ZEALAND LIMITED Twenty-Seventh Respondent

ANDANZ NATIONAL BANK LIMITED Twenty-Eighth Respondent

ANDBANK OF NEW ZEALAND Twenty-Ninth Respondent

ANDASB BANK LIMITED Thirtieth Respondent

ANDVERO INSURANCE NEW ZEALAND LIMITED

Thirty-First Respondent

Hearing:         (on the papers)

Counsel:         D R Bigio and V J Toan for Applicant

D M Connor and J S Campion for 25th Respondent

Judgment:      27 November 2012

COSTS JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 27 November 2012 at 2 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Counsel:       D R Bigio, Barrister, Auckland:  [email protected]

D M Connor, Barrister, Auckland:  [email protected]

Solicitors:      Glaister Ennor, Auckland:  [email protected]

Brian Fox, Auckland;  [email protected]

[1]      On 4 July 2012, I issued a judgment approving a scheme pursuant to s 48

Unit Titles Act 1972 (“Act”).  That followed an earlier judgment on 15 June 2012, in which I said that I would approve the Applicant’s proposed scheme, subject to two amendments.

[2]      I reserved costs, and the Applicant has since applied for costs on a 2B basis, together with disbursements, and for some uplift to the costs.

[3]      I propose to grant costs on a 2B basis, together with some disbursements and also award an uplift to a portion of the costs.  My reasons are as follows.

[4]      First, the application for approval of the scheme was filed on 31 May 2011, together with affidavits in support from the chair of the body corporate committee and an expert, Mr S R Alexander.

[5]      The registered proprietors of four units filed notices of opposition to the application, namely the registered proprietors of units 3A, 5B, 5C and 7C.  Only the registered proprietors of units 5C and 7C pursued their opposition, those proprietors being Mr N C Koreneff and Mr P W Crow.

[6]      Mr Crow and Mr Koreneff both filed affidavits in support of their notices of opposition.  Their evidence led to reply evidence by a valuer, Mr I R Colcord and further affidavits from Mr Alexander and the chair of the committee.

[7]      The  application  was  heard  in  March  2012.    The  opposition  from  the proprietors of units 3A and 5B had fallen away by that time.  Also, Mr Koreneff had sold his unit, to a company owned and controlled by Mr Crow and he ceased to be a party to the proceeding.

[8]      Mr Crow pursued three matters at the hearing before me.

[9]      The first concerned the scope of works to be subject to the s 48 scheme.  I considered there was some merit in his submissions as to the need to confine the definition of repairs.  However, his opposition and submissions went beyond that and

addressed another matter, namely whether or not the scheme could and, if so, should provide for guttering to be affixed to balconies.  I decided against Mr Crow on the latter point.

[10]     The second matter Mr Crow raised was as to the allocation of costs of the work.  There was no dispute between the parties that the scheme anticipated that a portion of the costs would be allocated other than in accordance with the Act.

[11]     However, Mr Crow wished the costs to be allocated on an entirely different basis,  not  that  proposed  by  the Applicant  and  not  that  anticipated  by  the Act. Considerable time was taken at the hearing with addressing the submissions on cost allocation.

[12]     Subsequent to the hearing, Mr Crow proposed an alternative scheme which might have had some attraction, had it been proposed at a much earlier stage.

[13]     Mr  Crow’s  third  objection  concerned  various  procedural  matters  and provisions  in  the  proposed  scheme.    None  of  the  provisions  that  the Applicant proposed were unreasonable.  In fact all seemed entirely sensible.

[14]     I  acknowledge  Mr  Crow’s  submission  that  I  did,  in  fact,  require  some

amendments to be made to the scheme. They were, however, confined. [15] In the circumstances, I consider the following to be reasonable.

[16]     First,  Mr  Crow  is  to  pay  costs  on  a  2B  basis,  less  the  sum  which  the Applicant would have incurred in any case and which it acknowledges is not attributable to Mr Crow’s opposition.  Second counsel is permitted.

[17]     Secondly, Mr Crow should pay disbursements caused by his opposition.  In my view those are the costs attributable to Mr Colcord’s affidavit, Mr Alexander’s reply affidavit  and  the setting down fee.    I do  not  propose to make any order requiring  Mr  Crow  to  pay  the  costs  of  Mr  Alexander’s  initial  affidavit  or  of Mr Jordan’s affidavit sworn 4 April 2012.  Counsel for the Applicant submitted that the Applicant anticipated objections that it thought that Mr Crow and Mr Koreneff

might raise and included the relevant information in Mr Alexander’s first affidavit. That may be so but it is likely that some of the information would have been required in any event.  Mr Jordan’s affidavit was filed after the hearing and added little, if anything.

[18]     The Applicant also seeks increased costs, on the basis that the nature and conduct  of  Mr  Crow’s  opposition  necessitated  work  or  caused  expense  falling outside that anticipated by the time allocations in schedule three to the High Court Rules.  There is merit in these submissions in respect of steps three, five and six on the  schedule  of  costs  that  is  annexed  to  the  Applicant’s  memorandum  dated

11 September 2012.  I allow a 50 per cent uplift to the costs on those steps.

[19]     To the extent there is any dispute between the parties as to actual quantum, the Registrar is to determine the matter.

..................................................................

M Peters J