Body Corporate 406198 v Housing New Zealand Limited
[2021] NZHC 1297
•3 June 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2020-404-1776
[2021] NZHC 1297
BETWEEN BODY CORPORATE 406198
First Applicant
YAN HEI TOMMY YU
Second ApplicantAND
HOUSING NEW ZEALAND LIMITED
First Respondent
HAIXIN WANG
Second RespondentContinued over page
Hearing: On the papers Counsel:
D R Bigio QC and I J Stephenson for the Applicants Y K Law (86th Respondent) in person
Judgment:
3 June 2021
COSTS JUDGMENT OF CAMPBELL J
This judgment was delivered by me on 3 June 2021 at 2:30 pm Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
BODY CORPORATE 406198 v HOUSING NEW ZEALAND LIMITED [2021] NZHC 1297 [3 June 2021]
HHTS LIMITED
Third Respondent
ZIYING ZHU
Fourth Respondent
THIAM CHYE CHONG
Fifth Respondent
CHAN KEITH KEISHUN AND CHENG SOW PENG
Sixth Respondent
PROPERTY OPPORTUNITIES LTD
Seventh Respondent
RETIREMENT 2050 LIMITED
Eighth Respondent
THI THU HANG LE
Ninth Respondent
BRENDA YAP
Tenth Respondent
USAR INVESTMENTS LIMITED
Eleventh Respondent
HIGH PROPERTY LIMITED
Twelfth Respondent
MENGYA JIA
Thirteenth Respondent
HUI-PO LIN AND KUAN-YING CHEN
Fourteenth Respondent
SIOW GUAN TANG AND SOH THAN ONG
Fifteenth Respondent
DEAN MAXWELL STANTON AND ANTHONY JOHN STANTON
Sixteenth Respondent
TG LINK INVESTMENT LIMITED
Seventeenth Respondent
SHAN HE
Eighteenth Respondent
TIN WEI LEO
Nineteenth Respondent
NAVEEN KUMAR
Twentieth Respondent
YAO TONG
Twenty first Respondent
CHYE HUA EE
Twenty Second Respondent
YUNNAN INVESTMENT AND DEVELOPMENT LIMITED
Twenty third Respondent
CALEDONIAN INVESTMENTS LIMITED
Twenty Forth Respondent
ANNE DEBORAH McCREATH, JOHN McCREATH, MACANN INVESTMENT TRUSTEE LIMITED
Twenty Fifth Respondent
JIAYUAN WANG
Twenty Sixth Respondent
KIM ENG TAN AND KAH FONG TAI
Twenty Seventh Respondent
KIM PONG TAN AND HELEN KWA
Twenty Eighth Respondent
QIUSI JI
Twenty Nineth Respondent
ATIG LIMITED
Thirtieth Respondent
WENJIE RAN
Thirty First Respondent
J BODLE 101 LIMITED
Thirty Second Respondent
JANE EVELYN PERKINS, S&J PERKINS TRUSTEES LIMITED, STEPHEN RAYMOND
Thirty Third Respondent
YAN HEI TOMMY YU
Thirty Fourth Respondent
YINLING LINDA WU
Thirty Fifth Respondent
CHONG MEND TEO AND SIEW HANG TAN
Thirty Sixth Respondent
ANNA WEI LERN YEO
Thirty Seventh Respondent
KENG WENG LEONG AND YIM PENG WONG
Thirty Eighth Respondent
KEVIN FRASER GASKELL AND VIRGINIA MABILANGAN GASKELL
Thirty Nineth Respondent
CHING-JUNG TSAI
Fortieth Respondent
MAN-CHING CHUANG AND SHU LIN LIN
Forty First Respondent
WEI WU
Forty Second Respondent
KIWI HOLIDAY INSURANCE LIMITED
Forty Third Respondent
MEGAN QIN WEI LIEW
Forty Forth Respondent
NSJ HOLDINGS LIMITED
Forty Fifth Respondent
LUI LAM AND CHIT WAH
Forty Sixth Respondent
ZIHE WANG
Forty Seventh Respondent
YOSUA TIMOTHY
Forty Eighth Respondent
YI CHIA LEE
Forty Ninth Respondent
CHUNG CHENG TSAI
Fiftieth Respondent
SAI MA AND NAN ZHANG
Fifty First Respondent
CHUNLAI SHEN
Fifty Second Respondent
MARK JOSEPH WILSON, DINGXIANG LIU AND SH TRUSTUEE SERVICES (CNZ) LIMITED AS TRUSTEES OF THE CNZ TRUST
Fifty Third Respondent
CLIVE KHOON LIP TAN AND JOLENE WEILING TAN
Fifty Fourth Respondent
XUN ZHANG AND XIAOYU HAN
Fifty Fifth Respondent
SHU MEI CHIU
Fifty Sixth Respondent
KOK HONG RUPERT TAI AND MAN LIN CHEW
Fifty Seventh Respondent
KIM LOON SOON STEPHEN AND LAI KWAI WONG
Fifty Eighth Respondent
ANNIE ATTIA AND BRUNO COGINARD
Fifty Ninth Respondent
DONALD GIORGIO
Sixtieth Respondent
DAVID XI XIE
Sixty First Respondent
GE SHEN
Sixty Second Respondent
GS PROPERTY INVESTMENTS (NZ) LIMITED
Sixty Third Respondent
CUIXIAN CHEN
Sixty Forth Respondent
JEYASOTHY T PALAKRISHNAR AND RAJINI PARARAJASINGAM
Sixty Fifth Respondent
QINCHAO LIN AND QING WANG
Sixty Sixth Respondent
JNA INVESTMENTS LIMITED
Sixty Seventh Respondent
LEE MEE THEN AND LIAN SOON KOH
Sixty Eighth Respondent
CLAIRE DAWN SIEW KOON YIO AND JOANNE YAN HUA SEOW
Sixty Seventh Respondent
KOK SENG HUI
Sixty Eighth Respondent
YOUGUI WANG
Sixty Ninth Respondent
MIAN QU AND SUQIN HE
Seventieth Respondent
828 INVESTMENT PROPERTY LIMITED
Seventy First Respondent
CHIN-CHIEN LIN AND KUN LIN
Seventy Second Respondent
WEIJING LU
Seventy Third Respondent
HAIRONG SHI
Seventy Fourth Respondent
JIALE ZHANG
Seventy Fifth Respondent
JOSHUA JAMES GOOLEY AND VEY DESITA HADINOTO
Seventy Sixth Respondent
CHEE LEONG WONG AND SIEW ENG YEO
Seventy Seventh Respondent
YANCE UTAMA
Seventy Eighth Respondent
MCK ENTERPRISES LIMITED
Seventy Nineth Respondent
DIMEI LU
Eightieth Respondent
CHANG LIU
Eighty First Respondent
FADAK INVESTMENT LIMITED
Eighty Second Respondent
JIANG XUN
Eighty Third Respondent
YULAN HAN
Eighty Forth Respondent
MICHAEL LYE HEE KOH AND Al CHOO BASILISA
Eighty Fifth Respondent
YONG KIANG LAW
Eighty Sixth Respondent
SIN MIN BENJAMIN YEO AND MEARN HWA LIM
Eighty Seventh Respondent
JESSICA NGOH MEI JANG AND TSE MING TOH
Eighty Eighth Respondent
YU LIU
Eighty Nineth Respondent
WEI LI
Ninetieth Respondent
CHEE WAH LOW AND TZU LIN CHIA
Ninety First Respondent
KWOK SHEN ALVIN KIEW
Ninety Second Respondent
MAN NAH HO
Ninety Third Respondent
BANGLUN CHEN
Ninety Fourth Respondent
SHAHRZAD SHAHBAZ
Ninety Fifth Respondent
MALCOLM LINDSAY GRANT AND KWAN YING JUDY CHAN
Ninety Sixth Respondent
JINGJING HE
Ninety Seventh Respondent
XI YUN ZHANG
Ninety Eighth Respondent
CHENYAN XIAO
Ninety Ninth Respondent
DONG YUAN YANG
One Hundredth Respondent
BLAIR NORWOOD KNIGHT AND MILOS PEJOVIC
One Hundred and First Respondent
TSUNG HSUAN HSIEH
One Hundred and Second Respondent
YONG KIANG LAW AND PHUONG MAI LE DINH
One Hundred and Third Respondent
YUE ZHOU
One Hundred and Fourth Respondent
GPS PROPERTY HOLDINGS LIMITED
One Hundred and Fifth Respondent
IKJONG AUM AND SEONG SOOK JANG
One Hundred and Sixth Respondent
GREGORY EWEN MORGAN AND PAUL KAYE WELLS JANG
One Hundred and Seventh Respondent
THIM CHIEW WONG AND LI KIAN CHAN
One Hundred and Eighth Respondent
CHENG ME NGU AND SIENG YIENG LAW
One Hundred and Ninth Respondent
MUI LING LEE
One Hundred and Twentieth Respondent
JOYCE PING LEE AND NOI KENG KOH
One Hundred and Twenty First Respondent
CHANG KUEI CHUE
One Hundred and Twenty Second Respondent
ANZ BANK NEW ZEALAND LIMITED
One Hundred and Twenty Third Respondent
WESTPAC NEW ZEALAND LIMITED
One Hundred and Twenty Forth Respondent
BANK OF NEW ZEALAND
One Hundred and Twenty Fifth Respondent
ASB BANK LIMITED
One Hundred and Twenty Sixth Respondent
SOUTHLAND BUILDING SOCIETY
One Hundred and Twenty Seventh Respondent
BASECORP FINANCE
One Hundred and Twenty Eighth Respondent
JENNIEER FONG AND RAYMOND GIN
One Hundred and Twenty Ninth Respondent
MORTGAGE HOLDING TRUST COMPANY LIMITED
One Hundred and Thirty Respondent
KOOKMIN BANK
One Hundred and Thirty Second Respondent
INDUSTRIALAND COMMERCIAL BANK OF CHINA (NEW ZEALAND) LIMITED
One Hundred and Thirty Third Respondent
TSB BANK LIMITED
One Hundred and Thirty Forth Respondent
FINANCE DIRECT LIMITED
One Hundred and Thirty Fifth Respondent
NATIONAL PREMIUM LIMITED
One Hundred and Thirty Sixth Respondent
ROBERT GEORGE BRYING AND SAMANTHA ELIZABETH HARDWOOD
One Hundred and Thirty Seventh Respondent
WEI LI
One Hundred and Thirty Eighth Respondent
SAO LENG WONG
One Hundred and Thirty Ninth Respondent
CHANG ZHANG
One Hundred and Fortieth Respondent
STEFANO VIO
One Hundred and Forty First Respondent
K 3 LEGAL LIMITED
One Hundred and Forty Second Respondent
[1] In my judgment dated 13 April 2021 the applicants succeeded in their application to settle a scheme under s 74 of the Unit Titles Act 2010. I invited the parties to attempt to agreed costs. They have been unable to do so. I have received the following:
(a)A memorandum of counsel for the first applicant (the Body Corporate) dated 30 April 2021. The Body Corporate seeks costs from the 86th respondent, Mr Law. Mr Law was the only respondent who filed an opposition to the application. Mr Law appeared at the hearing of the application.
(b)An affidavit by Mr Law dated 7 May 2021. Mr Law opposes any costs order against him.
(c)A memorandum of counsel for the Body Corporate dated 11 May 2021.
(d)A response to that memorandum by Mr Law dated 12 May 2021.
[2] The fundamental principle, expressed in r 14.2(1)(a) of the High Court Rules 2016, is that a party who fails with respect to a proceeding should pay costs to the party who succeeds. Mr Law was the party who failed in this proceeding. The Body Corporate succeeded. Under the fundamental principle Mr Law should therefore pay costs to the Body Corporate.
[3] Rule 14.7 sets out exceptions to that fundamental principle. Under that rule the court may refuse to make an order for costs, or may reduce the costs otherwise payable to the successful party, on a limited number of specific grounds. Mr Law’s affidavit and his memorandum of 12 May 2021 do not engage with r 14.7. Mr Law raises a number of matters, but these relate to the substantive merits of the proceeding. I have already made a decision on the substantive merits in my judgment of 13 April 2021. Nothing in Mr Law’s affidavit or memorandum persuades me that any of the grounds set out in r 14.7 are established.
[4]The Body Corporate is therefore entitled to costs from Mr Law.
[5] As to the amount of those costs, the Body Corporate does not seek costs for every step that it has taken in this proceeding. That is because the Body Corporate accepts that some of those steps would have had to have been undertaken even if Mr Law had not opposed the application. In addition, the Body Corporate has claimed only 80 per cent of the allowance for preparing submissions and the bundle for the hearing, recognising that a certain amount of such work would have been required even if the application had been unopposed.
[6] In essence, the Body Corporate seeks costs only for those steps caused by Mr Law’s opposition. I agree that is the appropriate approach in a proceeding such as this, where the applicant would have incurred certain costs even if there had been no opposition.
[7] I have reviewed the schedule attached to the Body Corporate’s memorandum dated 30 April 2021. I agree that each of the steps for which a claim is made arose as a result of Mr Law’s opposition.
[8]The Body Corporate seeks costs on a 2B basis. I agree that is appropriate.
[9]Accordingly, I order that Mr Law is to pay costs and disbursements totalling
$14,932.20 to the Body Corporate.
Campbell J
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