Body Corporate no,406198 v Jia

[2025] NZHC 315

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-926

[2025] NZHC 315

BETWEEN

BODY CORPORATE NO. 406198

Applicant

AND

MENGYA JIA

Respondent

Hearing:	On the papers
Judgment:	26 February 2025

JUDGMENT OF O’GORMAN J

This judgment was delivered by me on 26 February 2025 at 4.00 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

…………………………………

Solicitors:

Price Barker Berridge, Henderson T M Bates & Co, Auckland

BODY CORPORATE NO. 406198 v JIA [2025] NZHC 315 [26 February 2025]

Introduction

[1]                  In this proceeding, Mengya Jia (the judgment debtor/applicant) applied to set aside a final judgment sealed by the High Court on 19 April 2024, following removal of a District Court judgment into the High Court under s 120 of the District Courts Act 2016.

[2]                  Under s 120, a judgment creditor may apply to the District Court to remove a final judgment into the High Court, if it is for the payment of an amount of money. The procedure is for the Registrar to issue a certificate of removal in the prescribed form. After a Registrar’s certificate has been filed in the High Court, no further steps may be taken in relation to the proceeding in which the judgment was given.

[3]                  Section 120(3) provides that the Registrar must not issue a certificate of removal before the expiry of the time for giving notice of an appeal against the judgment. In this case, that requirement was not complied with. The certificate was issued before the expiry of the time for giving notice of appeal. The underlying judgment was issued by the Tenancy Tribunal in an order with reasons dated 25 March 2024. Under s 17(6) of the Residential Tenancies Act 1986, a party has 10 working days after the date of decision to file a notice of appeal in the District Court. Excluding Good Friday and Easter Monday, the deadline was 10 April 2024. A notice of appeal was filed on 8 April 2024, and a stay application was filed on 9 April 2024. The certificate was sealed on 8 April 2024, and the High Court entered final judgment on 9 April 2024.

[4]                  On 29 November 2024, this Court made the orders sought in the application by consent in terms of a joint memorandum dated 28 November 2024, and a timetable was set for determining disputed issues as to costs.

Submissions on costs

[5]                  In the above circumstances, the applicant seeks indemnity costs against the respondent, on the basis that it wrongly and prematurely sought to remove the District Court judgment to the High Court within the restricted period.

(a)The applicant says her actual costs incurred (not including costs for this costs application) were $3,105 inclusive of GST, plus a filing fee disbursement of $650.

(b)By way of comparison, costs on a 2B basis are calculated in the sum of

$1,434 together with the disbursement of $650. This would only provide the applicant with 50 percent recovery of her actual costs incurred.

(c)The applicant submits that indemnity costs are appropriate under r 14.6 because the judgment creditor has acted vexatiously or improperly.

(d)On the facts, an appeal was lodged before the deadline of 10 April 2024, and in a memorandum dated 23 September 2024 the respondent attempted to take advantage of the error by arguing that there was no jurisdiction for the District Court to hear her appeal because the judgment had been sealed as a High Court judgment. In taking this step, the judgment creditor not only acted improperly in seeking removal into the High Court before the required deadline, but also it sought to take advantage of that wrong.

(e)The applicant refers to cases where indemnity costs have been awarded because misconduct caused loss of time to the Court and other parties when someone has taken steps in wilful disregard of clearly established law.1

(f)Counsel for the applicant also refers to the fact that it asked the respondent/judgment creditor to sign a consent memorandum addressing the procedural errors, but no response was received.

1      Bradbury v Westpac Banking Corp. [2009] 3 NZLR 400, Hedley v Kiwi Co-operative Dairies Ltd (2002) 16 PRNZ 694 (HC) at [11] and Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248.

[6]                  The respondent submits that scale costs should only be awarded on a 1A basis, and that neither 2B scale costs, nor increased or indemnity costs are justified on the facts.

(a)Costs calculated on a 1A basis amount to $477.

(b)In terms of the application for increased/indemnity costs, these are not appropriate when there is some reasonable explanation for the losing party’s conduct.2 The judgment creditor contends that the two requirements for indemnity costs are not satisfied, namely:3

(i)particular misconduct that causes loss of time to the Court and to the other party; and

(ii)wilful disregard of known facts or clearly established law.

(c)The respondent says that the filing of the certificate was done in good faith, with the reasonable expectation that the District Court registry would not seal it until the expiry of the appeal period. The respondent’s solicitors did not notice the error due to an oversight.

(d)Upon receiving the notice of appeal, the respondent ceased all action seeking to progress the judgment, and actively cooperated with the applicant by consenting to the High Court orders in a joint memorandum dated 28 November 2024.

(e)The respondent also claims that the time records reference another client’s name, which raises concern about the accuracy of the time records and the appropriateness of allocating costs to this particular matter.

2      Valmar Trustee Ltd v Smartwater Technologies [2016] NZHC 1583 at [12].

3      Bradbury v Westpac Banking Corp. [2009] 3 NZLR 400; [2009] NZCA 234.

Analysis

[7]                  The applicant’s memorandum refers to actual costs for the steps related to the High Court process as set out in an annexed time and disbursement record attached and marked “A”. That time and disbursement report records a total value of billed time at $11,511, with a handwritten notation next to that sum of $2,700 plus GST, totalling $3,105. The particular time narrations comprising that calculation do not appear to have been identified.

[8]                  In any event, I consider that the appropriate award of costs in this case is 2B with an uplift of 50 percent, together with the disbursement of $650:

(a)I accept that the primary duty under the legislation falls on the District Court Registrar not to seal the certificate before the expiry of the appeal period;

(b)I accept the evidence on behalf of the respondent’s solicitors that they failed to identify this error through oversight rather than a deliberate non-compliance;

(c)I nevertheless consider it incumbent on the solicitors seeking to seal a certificate and transfer the judgment to the High Court to check whether those steps comply with the statutory requirements, therefore an increased level of responsibility properly falls on the respondent for the resulting costs of this High Court proceeding;

(d)upon being told about the issue, the lawyers for the respondent could have made the application themselves to correct the error;

(e)I consider that 2B costs plus a 50 percent uplift should approximately reimburse the reasonable actual costs of the applicant’s steps taken in this proceeding; and

(f)these are less than the actual costs claimed, but I am not satisfied that it is appropriate to award any higher level of costs in the circumstances,

and I do not consider taking a taxation approach is justified or proportionate on the facts.

[9]                  I do not award costs on the submissions on costs, because the cost issues have been reasonably disputed by both parties.

Result

[10]I award costs of $2,151 plus the disbursement of $650.

O’Gorman J