Cummins v Body Corporate 172108
[2022] NZCA 496
•20 October 2022 at 10.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA234/2021 [2022] NZCA 496 |
| BETWEEN | ROBERT JAMES CUMMINS |
| AND | BODY CORPORATE 172108 |
| Court: | Goddard, Woolford and Mander JJ |
Counsel: | K P Sullivan for Appellant |
Judgment: | 20 October 2022 at 10.00 am |
JUDGMENT OF THE COURT
AThe costs payable by the appellant to the first respondent under this Court’s judgment [2022] NZCA 68 are fixed at $35,276.
BThere is no order as to costs in respect of the application to fix costs.
____________________________________________________________________
REASONS OF THE COURT
(Given by Goddard J)
The application for costs to be fixed
On 22 March 2022 this Court delivered a judgment dismissing an appeal brought by Mr Cummins.[1] The first respondent (the Body Corporate) sought indemnity costs. We found that the appeal formed part of a course of conduct that amounted to an abuse of process, and made an order that Mr Cummins pay the Body Corporate’s actual and reasonable costs.[2]
[1]Cummins vBody Corporate 172108 [2022] NZCA 68.
[2]At [69].
Counsel were directed to attempt to agree costs. In the event they could not, leave was reserved for the parties to apply to the Court to determine the amount payable.
Counsel have not been able to agree costs. The Body Corporate has applied to this Court to determine the amount payable. It claims $35,276 made up as follows:
| Fees (excl GST) | |
| Grove Darlow & Partners’ fees | $10,350.00 |
| Counsel’s fees | $24,894.00 |
| Disbursements (excl GST) | |
| Photocopying charges | $32.00 |
| TOTAL CLAIMED (excl GST) | $35,276.00 |
The time involved in each step taken by the solicitor and counsel for the Body Corporate is summarised in the table below:
| Step | Solicitors’ time (hours) | Counsel’s time (hours) |
| Preparing and filing notice of appearance and fast‑track application (13 May 2021) | 7.5 | - |
| Liaising with the Court in relation to a fixture, joint memorandum regarding counsel’s availability for a fixture (11 June 2021), correspondence with appellant regarding timetable for submissions, reviewing documents for inclusion in case on appeal and liaising with appellant regarding case on appeal | 5.6 | 0.74 |
| Researching and drafting submissions and chronology of key events (14 September 2021) | 3.0 | 35.94 |
| Preparation for hearing and drafting outline of oral argument (28 September 2021) | - | 13.41 |
| Attendance at hearing and reporting to Body Corporate | 4.0 | 4.57 |
| Email correspondence and telephone calls between solicitors and counsel, and with Court of Appeal registry | 0.6 | 1.65 |
| Total | 20.7 | 56.31 |
In order to assess whether indemnity costs are reasonable, the Court must assess, among other things, whether the tasks undertaken were reasonably necessary and whether the rates were reasonable.[3]
Objections to the costs claim
[3]Watson & Son Ltd v Active Manuka Honey Association [2009] NZCA 595 at [20], citing Frater Williams & Co Ltd v Australian Guarantee Corporation (NZ) Ltd (1994) 2 NZ ConvC 191,873 (CA) at 191,887.
Mr Cummins does not challenge the hourly rates used in the calculation of the Body Corporate’s costs. But he says that the time spent on various tasks was not reasonably necessary.
Mr Cummins submits that the costs incurred by Grove Darlow & Partners, solicitors for the Body Corporate, in this matter should be reduced as follows:
(a)The drafting of a fast-track memorandum at a cost of $2,750 is excessive, given there was no opposition to the fast-track procedure from Mr Cummins.
(b)There is no satisfactory explanation for $500 charged on 24 May as “appeal related administration”.
(c)There is no satisfactory explanation for $1,500 charged on 14 September for reviewing counsel’s submissions.
(d)The attendance of Mr Allan, instructing solicitor for the Body Corporate, at the hearing by video-link was unnecessary, given that counsel had been instructed, and should not be encouraged by an award of indemnity costs. Grove Darlow has charged 4 hours at $500 per hour for that item ($2,000).
Mr Cummins also submits that the costs incurred by Mr Orpin-Dowell, counsel for the Body Corporate, are excessive and unreasonable in the following respects:
(a)Mr Orpin-Dowell’s time for drafting and proofreading submissions between 7–14 September (35.94 hours) is excessive.
(b)Mr Orpin-Dowell’s time for preparation for a half-day hearing as respondent (13.41 hours) is excessive.
Mr Cummins says that the overall time spent by the Body Corporate on this matter is not proportionate to the issues involved. He submits that the motivation for the Body Corporate’s approach to the proceeding should be considered when assessing the reasonableness of the costs incurred in terms of proportionality. He says that a global award of $25,000 would represent an appropriate level of actual and reasonable costs for the short hearing on this appeal.
Response by Body Corporate
The Body Corporate has responded to the four specific points raised in relation to the time spent on various steps by Grove Darlow as follows:
3.In relation to paragraph [[7](a)] above], the Body Corporate notes that Mr Cummins did not support the application for entry onto the fast track. Instead, he abided the decision of the Court “as to whether the application meets the requisite standard in terms of urgency”. The Body Corporate therefore had to persuade the Court that entry into the fast track was appropriate.
4.In relation to paragraph [[7](b)] above] and attendances on 24 May 2021, on 24 May the Court emailed the notice of fixture. Unfortunately, the allocated fixture coincided with other commitments for counsel for both Mr Cummins and the Body Corporate. The attendances on 24 May relating to making enquiries about the possibility of an alternative fixture to accommodate both parties and updating the Body Corporate.
5.In relation to paragraph [[7](c)] above], the submissions for the appeal were drafted by counsel and then reviewed by Mr Allan (as instructing solicitor). Mr Allan has been acting for the Body Corporate since the first scheme variation application before Health J in 2010. In the circumstances, it was reasonable and appropriate for Mr Allan to review and provide comments on the draft submissions before they were finalised and filed.
6.In relation to paragraph [[7](d)] above], it was reasonable and appropriate for Mr Allan to attend the hearing given his long involvement and knowledge of the matter dating back to 2010. In the High Court, when awarding costs Powell J found that it was reasonable for both counsel and Mr Allan to appear.
(Footnotes omitted.)
More generally, the Body Corporate submits that this half-day appeal raised the issue of whether Mr Cummins’ conduct was an abuse of process in light of the 10‑year history of litigation between the parties. That required the factual history of the earlier litigation to be addressed. On appeal, Mr Cummins’ submissions raised new arguments about the nature of the interest he obtained in the property that was at the heart of the proceeding as a result of certain arrangements he had entered into. It was also necessary to deal in some detail with the issue of abuse of process.
Discussion
The overall level of costs claimed for this half-day appeal, which canvassed a significant number of issues and resulted in delivery of a judgment 72 paragraphs long, is in our view reasonable. It could well have been higher, if the Body Corporate had instructed counsel whose hourly rate was higher than that of Mr Orpin-Dowell.
The time taken on specific steps was also reasonable, having regard to the nature and complexity of this proceeding. We are not persuaded that any of the time incurred on the steps set out at [4] above was not reasonable.
Mr Cummins’ argument that the costs actually and reasonably incurred by the Body Corporate should be reduced because of its motivation in bringing the proceedings is untenable, in circumstances where it was Mr Cummins who brought the appeal, and that appeal was an abuse of process.
The Body Corporate did not seek costs in respect of the application to determine its costs. That reflects its moderate and reasonable approach to the conduct of the appeal.
For the sake of completeness, we note that we have been advised by counsel that the parties have agreed costs of $4,821.52 on the recall application in this Court.[4] The costs awarded in this judgment are in addition to that amount.
Result
[4]Cummins vBody Corporate 172108 [2022] NZCA 153.
The costs payable by the appellant to the first respondent under this Court’s judgment [2022] NZCA 68 are fixed at $35,276.
There is no order as to costs in respect of the application to fix costs.
Solicitors:
Core Legal Ltd, Masterton for Appellant
Grove Darlow & Partners, Auckland for First Respondent
0