Everest Serviced Apartments Limited v Body Corporate 511909

[2022] NZHC 2777

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-1191

[2022] NZHC 2777

BETWEEN

EVEREST SERVICED APARTMENTS LIMITED

Plaintiff

AND

BODY CORPORATE 511909

First Defendant

STRATA TITLE ADMINISTRATION LIMITED

Second Defendant

Hearing:

On the papers

Appearances:

G Thwaite for Plaintiff

C Baker for First Defendant
No appearance for Second Defendant

Judgment:

26 October 2022

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[Costs]

This judgment was delivered by me on 26 October 2022 at 4.30 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

EVEREST SERVICED APARTMENTS LIMITED v BODY CORPORATE 511909 [2022] NZHC 2777

[26 October 2022]

[1]    In my judgment of 8 August 2022 I dismissed the plaintiff’s application for an order for further and better discovery by the first defendant based on a contention that there had been collateral waiver of documentation in respect of which the first defendant would otherwise be entitled to claim privilege. At the conclusion of my judgment I recorded my preliminary view that the first defendant, as the successful party, was entitled to a costs award on a 2B basis and invited counsel to confer with a view to resolving costs. They have not been able to do so, and the Court now has memoranda from Mr Baker for the first defendant and Mr Thwaite for the plaintiff as to costs.

[2]    Mr Baker calculates 2B costs at $7,648.00. In doing so he identifies five items from the relevant schedule in the High Court Rules 2016, that is to say items 11, 23, 24, 26 and 29. Mr Thwaite opposes the order sought in respect of two of those items.

[3]    Mr Thwaite says that, insofar as item 11, which relates to the filing of memoranda for case management conferences or mention hearings, is concerned, the plaintiff’s memorandum dated 18 March 2022, which elicited a memorandum in response from the first defendant dated 22 March 2022, identified no conference or mentions hearing. On that basis, Mr Thwaite says that, as there was no case management conference or mentions hearing, the first defendant was not required to respond to the plaintiff’s memoranda and therefore has no costs claim. I disagree. Although it is true that there was no such event, the parties’ memoranda concerned genuine interlocutory issues and it seems to me that they concerned case management issues in the sense that they were directed and avoiding the need for a case management conference or mentions hearing. Certainly it seems to me that the plaintiff’s memorandum justified the first defendant in responding. I am therefore prepared to allow this item.

[4]    Insofar as item 29, which relates to the sealing  of the order  is  concerned,  Mr Thwaite contends that no formal sealed order was required. Given that the plaintiff’s application was dismissed, I am inclined to agree. For that reason, I am not prepared to allow this item.

[5]    There will be a costs order against the plaintiff in favour of the first defendant in the sum of $7,170, together with disbursements totalling $110.

Associate Judge Johnston

Solicitors/Counsel:

Russell McVeagh, Auckland Price Baker Berridge, Auckland E St John, Auckland

Case Officer:

Catherine Koo