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…
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- Case
- [2018] NZHC 2356
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CaseChat Overview and Summary
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.
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