Body Corporate 392418 v Chan - [2022] NZHC 2486

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-605

[2022] NZHC 2486

BETWEEN
BODY CORPORATE 392418

Applicant

AND

HOK FAI CHAN AND DEXIN MA & ORS

First Respondents

ANZ BANK NEW ZEALAND LIMITED
Second Respondent

Continued over page

Counsel: A Hough and M Samountry for the applicant J Haig and D MacKenzie for the respondent

Judgment
(on the papers):

29 September 2022

COSTS JUDGMENT OF ROBINSON J

This judgment was delivered by me on 29 September 2022 at 3:00pm pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors:
Grimshaw & Co
Counsel:
J Haig, Barrister, Auckland
D MacKenzie, Barrister, Auckland

BODY CORPORATE 392418 v HOK FAI CHAN AND DEXIN MA & ORS [2022] NZHC 2486 [29 September 2022]

ASB BANK LIMITED
Third Respondent

BANK OF NEW ZEALAND
Fourth Respondent

LLOYDS BANK PLC
Fifth Respondent

MORTGAGE HOLDING TRUST COMPAY LIMITED
Sixth Respondent

WESTPAC NEW ZEALAND LIMITED
Seventh Respondent

CHUBB INSURANCE NEW ZEALAND LIMITED
Eighth Respondent

[1] On 18 March 2022 I granted the plaintiff’s application to settle a scheme under s 74 of the Unit Titles Act 2010.1 I offered my preliminary views on costs but directed the parties file memoranda in the event they could not agree.

[2] The parties could not entirely agree and have filed memoranda. They agree the Body Corporate is entitled to costs on a 2B basis, but dispute certain amounts as follows.

[3]The Body Corporate seeks costs of $43,727.13 against HWD comprising:

(a)2B scale costs of $17,208 with a 50 per cent uplift;

(b)disbursements of $2,301; and

(c)expert fees of $15,614.13.

[4]HWD says the Body Corporate should only be entitled to 2B scale costs of

$13,862 with no uplift, plus disbursements of $2,301. It also says it is appropriate to reduce the award because as owner of 20 per cent of the units it must pay 20 per cent of the Body Corporate’s costs in levies.

Discussion

Quantum of scale costs

[5] The parties dispute the amount claimable for the filing of six case management memoranda under item 39 in sch 3 to the High Court Rules 2016. They otherwise agree on other scale costs.

[6] Item 39 provides that the days allocated to case management for originating applications is the same as for ordinary proceedings. The relevant item for ordinary proceedings is item 11, which under category B allocates 0.4 days for the filing of case management memoranda.

1 Body Corporate 392418 v Chan [2022] NZHC 503.

[7] In accordance with that allocation, the Body Corporate claims 2.4 days for its six case management memoranda. HWD, however, contends these were not ordinary case management memoranda: some did not involve HWD at all, being as to service, and others were one-page memoranda seeking timetabling orders. It says that at most 1 day is appropriate, not the 2.4 sought.

[8] While it is the case some case management memoranda did not involve HWD at all, and others were short memoranda seeking…

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: [2022] NZHC 2486
Decision Date: 29 September 2022

CaseChat Overview and Summary

In the High Court of New Zealand, Body Corporate 392418 filed an application for costs against HWD and other respondents following the settlement of a scheme under section 74 of the Unit Titles Act 2010. The primary dispute centred around the quantum of scale costs, the appropriateness of an uplift on these costs, the award of expert fees, and whether there should be a reduction in costs due to levies paid by HWD as a unit owner. The court was required to determine the appropriate amount of costs that HWD should pay to the Body Corporate, considering the arguments presented by both parties regarding the scale costs, the uplift, the expert fees, and the levies.

The court first addressed the scale costs, focusing on the filing of six case management memoranda. Although some of these memoranda did not involve HWD and others were short, the court ruled that the Body Corporate was entitled to the costs it reasonably incurred. The court allocated 2.4 days for the six memoranda, as prescribed by the High Court Rules 2016, and found no basis to deem these costs unreasonable. Regarding the uplift on scale costs, the court considered the merit of HWD's arguments and determined that a 25 per cent uplift was appropriate, as HWD's opposition was not entirely without merit but still contributed unnecessarily to the time of the proceeding. The Body Corporate was also awarded its actual expert fees, as the court could not ascertain from the material presented whether these costs had already been recovered in another proceeding. Finally, the court rejected HWD's submission for a reduction in costs due to levies, holding that HWD would indirectly benefit from its payment of costs to the Body Corporate.

The court ordered HWD to pay the Body Corporate costs amounting to $39,425.13, which included 2B scale costs with a 25 per cent uplift, disbursements, and expert fees. This decision concluded the matter of costs arising from the settlement of the scheme under section 74 of the Unit Titles Act 2010.

Orders