Body Corporate 348047 v Auckland Council

[2017] NZHC 2666

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2013-404-4646 [2017] NZHC 2666

IN THE MATTER

of Imperial Gardens Apartments

BETWEEN

BODY CORPORATE 348047
First Plaintiff

AND

CHRISTIAN WAN & ORS Second Plaintiffs

AUCKLAND COUNCIL First Defendant

WHL LIMITED (FORMERLY WATTS & HUGHES LIMITED) (in liquidation)

DOWNER NEW ZEALAND LIMITED Third Defendant

ALUMINIUM TECHNOLOGY LIMITED

First Third Party

ARCHITECTURAL WINDOW SOLUTIONS LIMITED

Second Third Party

ABBAS LIMITED Third Third Party

STEPHEN MITCHELL ENGINEERS LIMITED

Fourth Third Party

METROPOLITAN GLASS & GLAZING LIMITED

Fifth Third Party

RICHARD ORMAN BUILDERS LIMITED

Sixth Third Party

BODY CORPORATE 348047 v AUCKLAND COUNCIL & ORS [2017] NZHC 2666 [31 October 2017]

RICHARD LEONARD ORMAN Seventh Third Party

TAL LIMITED Eighth Third Party

Hearing:	On the papers
Judgment:	31 October 2017

COSTS JUDGMENT OF DUFFY J

This judgment was delivered by me on 31 October 2017 at 4.00 pm pursuant to

Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors / Counsel: Grimshaw & Co, Auckland

Minter Ellison Rudd Watts, Auckland

[1]      The plaintiffs were successful in obtaining orders from this Court for the first defendant to answer interrogatories.   Each party in its memorandum seeking costs makes complaint about the other in the lead up to the hearing in this Court.  The account is factual and if it were to be properly pursued by either party it would need to be in affidavit form.  The Court is not equipped to resolve factual disputes on the basis of statements made by counsel in their memoranda.   Nonetheless from the material that was before me at the hearing it is clear to me that the plaintiffs have on more than one occasion refined the interrogatories they sought.   Ultimately they were successful in obtaining orders from this Court in relation to 39 of the 41 (as amended) interrogatories.  Those interrogatories were ordered after I had given the plaintiffs the opportunity to redraft their interrogatories.

[2]      I am satisfied that the measure of success the plaintiffs ultimately enjoyed should  result  in  them  being  awarded  costs.     Whilst  they  were  given  ample opportunity to reframe their interrogatories, I also consider the first defendant was given ample opportunity to realise that once the reframed interrogatories were before the Court it was likely orders would be made.   Nonetheless the first defendant maintained a vigorous opposition to the ordering of any interrogatories.  Ordinarily the success the plaintiffs have enjoyed in a proceeding such as this would result in an award of costs on a 2B basis.  At scale 2B, a costs award with disbursements comes to $13,436.88.

[3]      The plaintiffs seek an uplift of 50% under High Court Rule 14.6 owing to what, in essence, they allege to be an unreasonable resistance on the part of the first defendant.  The difficulty for the plaintiffs in making this argument is the fact that it seems they have made a number of attempts via notice and subsequently via application to obtain answers to interrogatories.  It may perhaps be understandable that the first defendant would become resistant to answering any interrogatories when faced with early demands that did not measure up in terms of what the law requires for interrogatories.

[4]      I consider that for different reasons neither party has acquitted itself well when it comes to the question of the interrogatories.  The plaintiffs failed to frame

them properly from the outset and the first defendant confirmed its opposition after it was faced with properly frames interrogatories.

[5]      The first defendant seeks for costs to lie where they fall.  I do not consider that would be an appropriate outcome in this case because ultimately the plaintiff achieved considerable success.  Had the first defendant not maintained its resistance to any interrogatories being ordered, I might well have been persuaded to allow costs to lie where they fall.  However, to the very end the first defendant strongly resisted the  Court  making  any  order  for  interrogatories.    Faced  with  such  opposition  I consider the success the plaintiffs obtained warrants proper recognition by an award of costs in the usual way.  However, for reasons already given I consider they should be no more than the scale costs as sought by the plaintiffs.

Result

[6]      The plaintiffs are awarded costs at category 2B and disbursements in the sum of $13,436.88.