Body Corporate 85978 v Saint Pauls Asset Management Limited (previously Mighty Rocket Trustees Ltd)

[2020] NZHC 826

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2020-485-004

[2020] NZHC 826

UNDER

the Companies Act 1993

IN THE MATTER

of the liquidation of Saint Pauls Asset Management Limited (previously Mighty Rocket Trustees Ltd)

BETWEEN

BODY CORPORATE 85978

Plaintiff

AND

SAINT PAULS ASSET MANAGEMENT

LIMITED (previously Mighty Rocket Trustees Ltd)

Defendant

Counsel:	D A Bleier for plaintiff E Currie for defendant
Judgment:	28 April 2020

COSTS JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[On the papers]

[1]                 In my minute of 9 April 2020, that followed a telephone hearing earlier the same day, I ruled that a passage in an affidavit filed and served by the defendant in opposition to the plaintiff’s substantive application for an order winding the defendant up was inadmissible.

[2]                 The plaintiff, as the successful party, sought costs in connection with the hearing, and I ordered that it should have its costs on a 2B basis.

[3]                 Regrettably, counsel have not been able to agree as to the quantum of costs and have come back by memorandum in relation to that.

BODY CORPORATE 85978 v SAINT PAULS ASSET MANAGEMENT LIMITED (previously Mighty Rocket

Trustees Ltd) [2020] NZHC 826 [28 April 2020]

[4]                 For the plaintiff, Mr Bleier acknowledges that, as there was no formal notice of application filed and served in the usual way, there can be no claim in respect of that. He submits however that the plaintiff is entitled to costs on a 2B basis for the preparation of written submissions (1.5 days at $2,390 per day) and his appearance at the hearing (.25 of a day at the same rate). Accordingly, the plaintiff is seeking costs in the sum of $4,182.50 (1.75 days at the aforementioned rate).

[5]                 The defendant, through Ms Currie, contends that that claim is excessive and should be reduced. In support of that contention she submits that “… costs should reflect the reasonable work required for this step and the actual steps taken in accordance with the High Court Rules.” She goes on to suggest that only .4 of a day should be allowed in respect of the preparation by the plaintiff of submissions, though she accepts that .25 of a day is the appropriate allowance in respect of the hearing itself. Her argument is that the point at issue was a very narrow one — as indeed it was — and she points to the fact that the hearing itself occupied less than an hour.

[6]                 In my view, the position adopted by the defendant tends to ignore the principles behind the costs regime. The essential point is that sch 3 is to be taken as a proper indication of the time necessary to carry out certain steps. The schedules are designed to avoid enquiries of the very sort Ms Currie invites me to enter upon as to how much time was taken or should have been taken in relation to those steps. Accordingly, although it is of course elementary that costs are ultimately a matter of discretion for the Court, in the vast majority of cases the Court will decline to enquire into how much time was or should have been expended in taking any of the steps identified in sch 3 and proceed on the basis of the presumed time set out in that schedule. I fail to see anything particular about this case which should require the Court to deviate from that generally accepted approach. In particular neither the fact that there was no formal application, nor the fact that the matter was conducted by means of a telephone hearing appear to me to do so. The submissions prepared by counsel for both parties were comprehensive and helpful. That is precisely why the hearing was a short one.

[7]In short I see no reason to depart from scale costs.

[8]I record Mr Bleier’s assurance that the actual costs exceeded scale costs.

[9]The plaintiff is to have its costs of the interlocutory application in the sum of

$4,182.50. I would also award the plaintiff disbursements legitimately incurred in relation to the application, but I do not understand there to have been any.

Associate Judge Johnston

Solicitors:

Greenwood Roche, Wellington for the plaintiff Duncan Cotterill, Wellington for defendant