Bremner v Body Corporate 51615
[2025] NZHC 2946
•7 October 2025
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2025-485-225
[2025] NZHC 2946
UNDER Part 19 of the High Court Rules 2006 IN THE MATTER OF
an application under s 141 of the Unit Titles Act 2010
BETWEEN
ADRIENNE JEAN BREMNER
Applicant
AND
BODY CORPORATE 51615
Respondent
DAPHNE PATRICIA COLEMAN
Interested Party
On the papers: Counsel
A J Knowsley for Applicant
No appearance for Body Corporate 51615 D C Calder for Interested Party
Judgment:
7 October 2025
INTERIM JUDGMENT OF GENDALL J
[Costs]
Introduction
[1] This is an interim judgment as to costs following the applicant Ms Bremner’s largely successful application before me for the appointment of an administrator to a Body Corporate 51615 made on 11 April 2025.
[2] The interested party, Ms Coleman, largely on behalf of about five other unit owners in the Body Corporate, opposed the original application and now opposes Ms Bremner’s application for costs.
BREMNER v BODY CORPORATE 51615 (COSTS) [2025] NZHC 2946 [7 October 2025]
[3] At the substantive hearing on 11 August 2025 on which the application largely succeeded, the hearing was attended by the applicant and her legal representatives, the legal representatives of Ms Coleman, and one other owner of a unit in the Body Corporate, Ms Ashby-Belworthy.
[4]Following that substantive hearing, I made orders as follows:
(a)appointing Everything Body Corporate Limited as an administrator of the Body Corporate;
(b)appointing the administrator for a period of three years from 1 September 2025; and
(c)noting that costs were to be determined between the parties if possible, and if not, to be the subject of memoranda filed.
[5] The parties advised that they have been unable to reach agreement on costs. Memoranda of submissions have now been filed on behalf of the applicant, Ms Bremner, and in reply on behalf of the interested party, Ms Coleman.
[6]Here, the applicant seeks indemnity costs with respect to this matter totalling
$53,740.94 plus disbursements of $5,753.50.
[7] Alternatively, if the Court is to award scale costs to the applicant then the applicant Ms Bremner seeks a 100 per cent uplift on category 2B costs (which 2B costs themselves total $10,874.50) plus the disbursements amount of $5,753.50.
[8] As I indicated in my 19 August 2025 judgment, and I confirm here, the applicant as the largely successful party in these proceedings, is entitled to costs.
[9] As I understand the position, the interested party, Ms Coleman, largely represents the interests of a number of the other unit owners in the Body Corporate excluding Ms Bremner. Her position appears to be that she opposes an order of either indemnity or increased costs here but appears to acknowledge to some extent that Ms
Bremner as the successful party in this application, should be entitled to costs on a reasonable category 2B scale basis.
Costs, the Unit Titles Act 2010 and the High Court Rules
[10] The present application was brought in terms of s 141 of the Unit Titles Act 2010. That section here on the issue of costs relevantly states:
Appointment of administrator
…
(8)On any application made under this section the High Court may make any order for the payment of costs as it thinks fit.
[11] In addition, pt 14 of the High Court Rules sets out the framework under which this Court is to make an order for costs of, and incidental to, a proceeding with r 14.1 stating that all matters relating to costs are at the discretion of the Court. Principles that the Court must apply in determining the quantum of costs payable however, are set out in r 14.2.
[12] Here, Ms Bremner seeks indemnity costs being reimbursement to her of the actual costs she says she has incurred by employing counsel and lawyers on her behalf in this whole matter.
On this, Ms Bremner maintains that:
(a)She has been trying to resolve issues with the Body Corporate for some six years (and has been legally represented for the last four years) and she contends the Body Corporate has had numerous opportunities to comply with the Unit Titles Act but has not done so.
(b)The defence Ms Coleman had originally advanced here and the opposition to Ms Bremner’s actions by other members of the Body Corporate was unmeritorious. This is evidenced by Ms Coleman withdrawing her opposition to the appointment of an administrator before me, but continuing to argue the terms on which an administrator should be appointed.
[14] Overall therefore, Ms Bremner contends that she should be awarded the actual legal costs she has incurred here as this has been done reasonably, entirely in the interests of, and effectively on behalf of, all the unit owners as members of the Body Corporate.
[15] Whilst effectively the costs initially sought before me are for an award of indemnity costs, the test for such an award in r 14.6(4) is a stringent one. Indemnity costs generally can be awarded only where a party has behaved either very badly or very unreasonably, they are exceptional and require quite bad behaviour.
[16] But in my view, there is a further issue to be considered in this case. The present matter, involving as it does the appointment of a necessary administrator under the Unit Titles Act, attracts other considerations. A useful case by comparison in which this Court has specifically considered s 141(8) of the Unit Titles Act is May v Body Corporate 329331.1 In that case, Lang J said:
[27] … I consider the broad nature of the discretion (as to the costs) reflects the fact that, as the present case demonstrates, those who apply for an order appointing an administrator will not generally do so for their benefit. Rather, they make the application for the benefit of the unit owners as a body.
[28] I consider it unlikely in the present case that the recovery of scale costs from the opposing respondents will be sufficient to fully reimburse those unit owners who have funded the application and opposition to the cross- application. It would be unjust in my view for those parties to be left out of pocket when they have acted in the interests of the unit owners as a body. I consider s 141(8) provides a convenient mechanism by which this issue can be addressed. It is appropriate in my view that any shortfall is met by all unit owners as if it were part of the cost of remedial work.
[emphasis added]
[17] In the May decision however, Lang J held that, to the extent there was a shortfall between the actual and reasonable costs incurred by the Mays, and those recovered from the opposing unit owners, he directed under s 141(8) that the administrator was to levy all unit owners (including the Mays) to meet the cost of funding the shortfall in the same way as if it was part of the cost of the remedial work.
1 May v Body Corporate 329331 [2020] NZHC 1554.
[18] In the present case in my view, similar considerations apply. As best I can tell from the lengthy history of this matter, for some time Ms Bremner has been endeavouring to have an administrator appointed for the Body Corporate to ensure that all statutory and normal requirements imposed under the Unit Titles Act are properly met by it and the unit owners here. This appears to have been met with delays and opposition which have finally resulted in this successful s 141 application by Ms Bremner.
[19] As such, and despite certain opposition from other unit owners, the position has been that to date Ms Bremner has funded the application and all lead-up work herself, largely as I see it, on the basis of “acting in the interests of the unit owners as a body”. Her reasonable legal costs and disbursements on this application should therefore be met by the Body Corporate itself (and thus shared equally by contributions between all owners including her). In a true sense, I repeat the important point here that Ms Bremner’s present application was not one made solely for her own benefit but was one made for the benefit of all the unit owners as members of the Body Corporate.
[20] The award of costs and disbursements I am to make in the interests of justice and fairness here, is therefore one for Ms Bremner’s reasonable actual costs and expenses directly incurred by her of, and incidental to, this application. Notwithstanding that, in the May case, I do note that Lang J achieved a similar result following a somewhat different route.
[21] As to the High Court rules themselves, r 14.6(4) addresses increased and indemnity costs and relevantly provides here:
14.6 Increased costs and indemnity costs
…
(4) The Court may order a party to pay indemnity costs if—
…
(f) some other reason exists which justifies the Court making an order for indemnity costs despite the principle that the determination of costs should be predictable and expeditious.
[22] As I see it, and bearing in mind Lang J’s comments in May v Body Corporate 329331 above, this is one of those rare cases where r 14.6(4)(f) of the High Court Rules applies and justifies an award of actual costs incurred by Ms Bremner here. Those costs are to be met entirely by the respondent Body Corporate and thus shared equally by contribution between all the owners of the various units. The affect of this will be that Ms Bremner herself, along with Ms Coleman and each of the other unit owners in the Body Corporate, will meet an equal share of Ms Bremner’s actual reasonable costs and disbursements in bringing this application.
[23] The justification for this result as Lang J said, and as I have noted above, is that Ms Bremner (who successfully applied for the order appointing the administrator) has generally done so not for her own benefit but rather for the benefit of all the unit owners as a body. An appropriate order is to follow.
Costs calculations
[24] I turn now to consider the calculation of Ms Bremner’s actual costs claimed totalling $53,740.94 and her disbursements claim of $5,753.50.
[25] In submissions Mr Calder advanced for Ms Coleman, issue is taken broadly with two aspects. The first is the total amount of costs claimed, said to be excessive, and the second specifically relates to certain of the disbursements included in eight invoices in the claim referred to simply by an invoice number and also an additional “service fee”. No copies of the invoices Mr Calder says have been provided.
[26] As to the disbursements matter noted secondly above, Mr Calder, for Ms Coleman, accepts in his submissions that if this Court is to award Ms Bremner her reasonable disbursements, then she should only be entitled to recover service fees and other proper disbursements providing she provides copies of the invoices to the Registrar for approval after full consideration as to their reasonableness. I agree this is a proper course to follow. An appropriate order to this effect is to follow.
[27] As to Ms Bremner’s actual costs claimed here of $53,740.94, this is referenced in Schedule C of the submissions from her counsel as being invoices 347073, 347272, 347437, 347638, 347875, 348018, 348456, 348687, 348688, 348865, and 348929,
dated from times between 29 August 2024 and 29 August 2025. In addition, a claim for $3,000 for “costs of drafting submissions for cost determination” is made. In each case, there is no explanation as to the work involved in each of these invoices other than the repeated statement that they were “for legal services”.
[28] On this aspect, Mr Calder, for Ms Coleman, contends that in endeavouring to consider whether Ms Bremner’s actual costs were indeed reasonable, and appropriately incurred, there is no way for this Court to determine on the bare material provided whether those costs were in fact reasonable. No assessment of this is available on the material before the Court. In addition, Mr Calder complains that the actual costs claimed are many times the category 2B scale costs for this matter and, in his view, they “appear grossly excessive”.
[29] I do not necessarily accept this latter claim by Mr Calder given particularly that Mr Knowsley, counsel for Ms Bremner, is an experienced practitioner and no doubt well aware of his obligations to the Court as an officer of the Court.
[30] Notwithstanding this, there does seem to me to be an absence of explanation of the actual work undertaken for Ms Bremner to reach this total claim of $53,740.94.
[31] A direction is to follow therefore that a further memorandum is to be filed by Mr Knowsley (and a reply by Mr Calder) to provide the information sought for consideration as to the reasonableness of the actual costs claimed.
Interim result
[32]For the reasons outlined, I now order and direct as follows:
(a)The applicant, Ms Bremner, is entitled to an award of her reasonable actual legal costs incurred of, and incidental to, this proceeding (and an order to this effect is now made against the respondent) but the amount of this award is still to be determined by the Court.
(b)In the meantime therefore, the actual amount by way of costs to be awarded to the applicant, Ms Bremner, against the Body Corporate and Ms Coleman is reserved.
(c)To assist the Court in determining this total amount for costs, counsel for the applicant is to file and serve within five working days of the date of this judgment a memorandum outlining the work involved in each of the indemnity costs invoices referred to in Schedule C, and addressing the claim for drafting submissions for the costs determination all as outlined in Mr Knowsley’s 16 September 2025 memorandum of submissions.
(d)Mr Calder, for the interested party, is then to have a period of a further five working days to file and serve any response to Mr Knowsley’s memorandum.
[33] Those memoranda are to be referred to me and then I will give a final decision on the reasonable amount of actual costs to be awarded to Ms Bremner here.
[34] In the meantime, so far as Ms Bremner’s claim for $5,753.50 for disbursements is concerned, I confirm and order that Ms Bremner is entitled to an award against the respondent of reasonable disbursements of, and incidental to, this proceeding as determined by the Registrar of this Court. That claim for disbursements is to be made to the Registrar with appropriate information as to quantum to be provided for consideration.
[35] Leave is reserved for any party to apply further in the meantime should other issues arise.
Gendall J
Solicitors:
Rainey Collins, Wellington Gibson Sheat, Wellington
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