De Vries v Body Corporate 68792

[2015] NZHC 2973

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2015-485-000295 [2015] NZHC 2973

BETWEEN

ANTHONY HARRY DE VRIES

AND GERALDINE DE VRIES Appellants

AND

BODY CORPORATE 68792

Respondent

Hearing:	On Papers
Counsel:	Appellant in Person D G Dewar for Respondent
Judgment:	26 November 2015

COSTS JUDGMENT OF BROWN J

[1]      The circumstances leading to the abandonment of this appeal are recorded in my Minute of 26 June 2015.

[2]      The respondent has sought costs on a 2B basis calculated as follows:

Applicable  Paragraph  Schedule 3  High Court  Rules	Description	Costs
(Daily rate Category 2 = $1,990.00)
1.	53	Commencement of response to appeal (0.5 days)	$995.00
2.	54	Preparation for Case Management Conference (0.4 days)	$796.00
3.	10	Filing memorandum for First Case Management Conference (0.4 days)	$796.00

DE VRIES v BODY CORPORATE 68792 [2015] NZHC 2973 [26 November 2015]

4.	13	Appearance at Case Management Conference (0.3 days)	$597.00
5.	55	Preparation of Case on Appeal (1 day)	$1,990.00
6.	56	Preparation of written submissions (3 days)	$5,970.00
7.	57	Appearance at hearing (0.25 days)	$497.50
Total: 5.85 days x $1,990.00	$11,641.50

[3]      The respondent submits that in accordance with the general principle costs should follow the event and that there was no conduct on the part of the respondent justifying a refusal of or reduction in costs.   Indeed the respondent submits that a case could be made for an uplift but that is not sought.  With reference to item 5 the point is made that the appellant did not comply with basic procedural requirements in terms of the presentation of an appeal and consequently it was necessary for the respondent to assemble for the Court the material which would have been required to enable the appeal to be considered.

[4]      In a document entitled “13th  memorandum re award of costs” Mr de Vries explains why he considers that there should not be an award of costs in favour of the respondent.  He repeats a number of allegations previously made including the fact that counsel had no right to represent the Body Corporate and that counsel had deceived the courts with false and misleading documentation.   He revisits again issues relating to resolutions of the Body Corporate in 2005 and 2007.   As the respondent  anticipated  in  its  memorandum,  Mr de  Vries  raised  again  what  he describes as the financial burden he has suffered due to the injustice of the case and the time taken away from his business to deal with litigation issues.

[5]      While I am conscious of Mr de Vries’ concerns, the fact is that he elected to embark on this litigation, and, having abandoned the appeal, prudently in my view, he nevertheless has an exposure to costs because of the steps which the respondent was required to take to respond to the appeal.  Those costs were mitigated to some extent in that by abandoning the appeal on the morning of the fixture he avoided a further liability of up to $1,500.00.

[6]      I do not consider that there are any circumstances justifying a departure from the general principle that costs should follow the event.   In my view an award of costs calculated on a 2B basis is reasonable, particularly having regard to the point made by the respondent that counsel was required to read, consider and review a substantial array of material variously contained in or attached to the several memoranda which the appellant presented to the Court and to the respondent.

[7]      Consequently there will be an order for costs in favour of the respondent in terms of the submitted calculation.

Brown J

Solicitors:

Thomas Dewar Sziranyi Letts