Body Corporate 199380 v Cook - [2018] NZHC 2356

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2017-404-1852

[2018] NZHC 2356

UNDER the Unit Titles Act 2010

AND

the Residential Tenancies Act 1986

IN THE MATTER

of an appeal from the District Court

BETWEEN

BODY CORPORATE 199380

Appellant

AND

ALISON COOK & MICHAEL VAN DEN BLINK

First Respondents

AND

MARY WEBB

Second Respondent

Hearing: On the papers

Appearances:

S Price and I Stephenson for Appellant J P Wood and J Heatlie for Respondents

Judgment:

7 September 2018

COSTS JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 07 September 2018 at 3pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors:
MinterEllisonRuddWatts, Auckland Rainey Law, Auckland

BODY CORPORATE 199380 v COOK & ANOR [2018] NZHC 2356 [7 September 2018]

[1] On 30 May 2018, I dismissed the appeal by the body corporate seeking to recover the costs of repairs made to unit property under s 138(1) of the Unit Titles Act 2010 when recovery was possible under both s 126 and s 138(4) of that Act.1

[2] As I recorded in my judgment, counsel for the appellant body corporate said the specific question raised on appeal was:

Does s 138(4) apply only where the repairs to an owner’s principal unit do not “substantially benefit” any other units in the circumstances provided for in s 126?

[3] I upheld the body corporate’s contention that the Tenancy Tribunal and the District Court were wrong in holding that s 138(4) can apply only in circumstances that s 126 does not apply, but I rejected the body corporate’s submission that in circumstances where both sections apply, the choice as to which to use is solely at the discretion of the body corporate. I also held that while the District Court erred in holding that s 138(4) can apply only when s 126 does not apply, its approach and the result were broadly consistent with the approach that should be taken when deciding how the costs of repairs by a body corporate within unit titles should be allocated.

[4] I allowed the body corporate’s appeal against the District Court’s decision on costs on the basis that the uplifts applied were in error, and instead applied a single uplift to the costs payable to the respondents, the unit owners.

[5]On costs, I said:

[125] While the body corporate can claim to have been partly successful on the substantive appeal and to have succeeded on its costs appeal, in an overall sense the respondents were the successful parties and are entitled to costs on this appeal on a 2B basis. If the parties are not able to agree costs, the respondents are to file a memorandum by 27 June 2018; any reply by the body corporate should be filed by 18 July 2018.

[6] The parties have been unable to agree on costs and have submitted memoranda, albeit not in accordance with the timetable in my judgment. The…

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: [2018] NZHC 2356
Decision Date: 7 September 2018

CaseChat Overview and Summary

The High Court of New Zealand delivered a decision on the appeal by Body Corporate 199380 against the decision of the District Court, which had dismissed the body corporate's application to recover the costs of repairs made to unit property under s 138(1) of the Unit Titles Act 2010. The specific question raised on appeal was whether s 138(4) applies only where the repairs to an owner’s principal unit do not “substantially benefit” any other units in the circumstances provided for in s 126. The court upheld the body corporate’s contention that the Tenancy Tribunal and the District Court were wrong in holding that s 138(4) can apply only in circumstances that s 126 does not apply. However, the court rejected the body corporate’s submission that in circumstances where both sections apply, the choice as to which to use is solely at the discretion of the body corporate. The court allowed the appeal against the District Court’s decision on costs on the basis that the uplifts applied were in error, and instead applied a single uplift to the costs payable to the respondents, the unit owners.

The court concluded that while the body corporate can claim to have been partly successful on the substantive appeal and to have succeeded on its costs appeal, in an overall sense the respondents were the successful parties and are entitled to costs on this appeal on a 2B basis. The court rejected the body corporate’s submissions that the unit owners were not entitled to claim the cost of the preparatory step of assessing the notice of appeal and considering any points of appeal. The court also rejected the body corporate’s claim for a 50 per cent reduction in costs on the basis that costs ought to follow the event and that the unit owners were the successful party on the substantive appeal. The court allowed a reduction in costs claimed by the unit owners of ten per cent to recognise the costs appeal was a partial success of the body corporate in the proceeding. The respondents are entitled to recover costs in accordance with the schedule filed with the Court, subject to a reduction of ten per cent. This results in costs payable by the appellant to the respondents of $8028.00.

Orders