Body Corporate 78693 v Gibson Sheat Shelf Company no.28 Limited

[2020] NZHC 236

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV 2019-485-314

[2020] NZHC 236

UNDER

Unit Titles Act 2011

IN THE MATTER OF

an application to settle a section 74 scheme

BETWEEN

BODY CORPORATE 78693

Applicant

AND

GIBSON SHEAT SHELF COMPANY NO. 28 LIMITED

First Respondent

ALLEN BINSON GOH
Second Respondent

HILL VIEW HOLDINGS LIMITED

Third Respondent

On the papers
Judgment:	21 February 2020

JUDGMENT OF MALLON J

(Costs)

[1]                  The applicant body corporate has applied for approval of a scheme under s 74 of the Unit Title Act 2011. That application is scheduled for hearing on 9 March 2020.

[2]                  On 17 December 2019 I dismissed the Body Corporate’s application for interim relief.1 It sought an order authorising the Body Corporate to demolish four units to construct a temporary roof. The application was brought because of on-going security issues arising from the state of those four units. Interim relief was declined by me on the balance of convenience: demolition would be permanent, the respondents

1      Body Corporate 78693 v Gibson Sheat Shelf Company No. 28 Ltd [2019] NZHC 3344.

BODY CORPORATE 78693 v GIBSON SHEAT SHELF COMPANY NO. 28 LIMITED [2020] NZHC 236 [21

February 2020]

considered it would prejudice their position, there were other ways to address security in the meantime, and the temporary roof was costly and still needed approval from the unit holders.

[3]                  My preliminary view was that costs should be reserved.2 The parties were given an opportunity to make submissions about this. Pursuant to that opportunity, the respondents submit they should have costs as the party that succeeded on the application. The applicant submits costs should be reserved.

[4]                  Costs on an opposed interlocutory application must be fixed, and become payable when they are fixed, unless there are special reasons to the contrary.3 As matters stand it seems likely that a scheme of some form will be necessary.4 It is quite possible that any such scheme will require demolition of the four units. If demolition is required, then the respondents may have unnecessarily delayed this at the Body Corporate’s expense and, potentially, for no material gain to the respondents. This will all be known soon. The applicant brought the applications for an order approving a scheme and interim orders because of its statutory duty to repair and maintain. For these reasons, I accept the applicant’s submissions that there are special reasons to reserve costs in this case.

[5]Costs are accordingly reserved.

Mallon J

2 At [64].

3      High Court Rules 2016, r 4.8(1).

4      Of course, ultimately this is a matter for the Judge hearing the substantive application in light of the evidence and submissions before her.