Holdaway v Shay Solutions Limited

[2014] NZHC 1319

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-4035 [2014] NZHC 1319

UNDER

the Unit Titles Act 2010

IN THE MATTER

of an application under s 141 for an appointment of a Body Corporate Administrator

BETWEEN

RABBUL NISHA HOLDAWAY (commonly known as Neshia Holdaway) Plaintiff

AND

SHAY SOLUTIONS LIMITED First Defendant

SHAY STRATA SOLUTIONS LIMITED Second Defendant

Hearing:	(on the papers)
Appearances:	Plaintiff in person J Armstrong for the Defendants
Judgment:	12 June 2014

JUDGMENT OF WOODHOUSE J (Costs)

This judgment was delivered by me on 12 June 2014 at 3:30 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:

Ms N R Holdaway, Norwest City Law Ltd, Solicitors, Waimauku, Auckland

Mr J Armstrong, Armstrong Murray, Solicitors, Takapuna, Auckland

HOLDAWAY v SHAY SOLUTIONS LIMITED [2014] NZHC 1319 [12 June 2014]

[1]      In a judgment striking out the proceeding there was an order for costs in favour of the defendants, without the amount being quantified.1    The parties have been unable to agree on costs and memoranda have been filed.

[2]      The plaintiff submitted that there should be no costs.   The only argument advanced that might require review of the existing order is a submission that the parties had agreed at an earlier hearing, before Priestley J, that costs would lie where they fall.2   The plaintiff submitted that this was confirmed in a memorandum for the defendant of 10 December 2013.  Priestley J’s minute does not record an agreement, or a Court direction, to that effect.  The subsequent memorandum for the defendants recorded that the defendants would not seek costs if the proceedings were struck out at the hearing on 10 December 2013.  In the context of this entire proceeding, and

the plaintiff’s approach to it, what the defendants said in the 10 December memorandum can be seen as an effective offer of compromise to the plaintiff to agree to withdraw a proceeding which had little merit.  The defendants were seeking to bring their involvement to an end without incurring further cost.   This did not happen. The plaintiff’s further conduct of the proceeding exacerbated matters.

[3]      There is no proper basis for the plaintiff ’s effective challenge to the order

already made awarding costs to the defendants, subject only to quantification.

[4]      The defendants submitted that there are grounds for indemnity or increased costs, but said that in the end they sought costs on a 2B basis to avoid further extensive argument.  Given the plaintiff’s challenge to an existing costs order, and her response to the defendants reasonable approach on the quantification of costs, it is relevant to record that I am satisfied the defendants would be entitled to increased costs for the reasons recorded in the defendants’ memorandum.  These are that the plaintiff sued the wrong parties; she failed or refused to amend her proceeding or discontinue it in spite of repeated urging from the Court; and she did not heed the

advice of Kós J to instruct independent counsel to advise her in the proceeding.

1      Holdaway v Shay Solutions Ltd [2014] NZHC 468.

2 Minute of Priestley J of 14 October 2013 at [13].

[5]      The defendants seek a total of $7,274 for costs and disbursements.  This is fully itemised. The claim is in accordance with the schedules to the Rules.

[6]      There   is   an   order   that   the   plaintiff   pay   the   defendants’  costs   and

disbursements in a sum of $7,274.

Woodhouse J