Kennedy v Body Corporate 82981

[2022] NZHC 2096

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-485-749

[2022] NZHC 2096

UNDER

the Unit Titles Act 2010

IN THE MATTER

of breach of statutory duty, negligence and nuisance

BETWEEN

CY KENNEDY and KAJSA KARIN ELEONORA BJORS

Plaintiffs

AND

BODY CORPORATE 82981

First Defendant

NEIL DOUGLAS CHARLES COOPER
Second Defendant

ANTHONY VOLPICELLI

Third Defendant

Hearing:

30 June 2022

(and costs on the papers)

Counsel:

I J Stephenson for Plaintiffs N S Wood for Defendants

Judgment:

23 August 2022

JUDGMENT OF ASSOCIATE JUDGE LESTER

(Costs)

KENNEDY v BODY CORPORATE 82981 [2022] NZHC 2096 [23 August 2022]

[1]                 In my judgment of 5 August 2022, I declined the plaintiffs’ application that Chapman Tripp not represent the defendants.1

[2]                 I made what amounted to a default order in respect of costs, that is, costs were to be paid by the plaintiffs to the defendants on a 2B basis plus disbursements as fixed by the Registrar unless costs memoranda were filed within five working days following the Judgment.

[3]                 Mr  Stephenson,  counsel  for   the   plaintiffs,   filed   a   memorandum   on 12 August 2022 submitting there should be an order fixing costs on a 2B basis together with disbursements  totalling  $6,309.65  as  calculated  by  the  defendants  but  that I should order those costs not become payable until further order of the Court.

[4]                 Mr Stephenson recognised the starting position under r 14.8 of the High Court Rules 2016 (the Rules) is that costs on interlocutory steps are to be fixed, at the time the interlocutory is dealt with and are to be payable when fixed unless there are special reasons to order otherwise.

[5]                 Mr Stephenson submitted the following factors meant there were special reasons why costs should not be made payable by his clients now.

[6]                 The first factor is there is no evidence or finding that the application was brought for tactical or bad faith reasons. I do not consider this a ground for deferring the payment of costs. I accept the submission of Mr Woods, counsel for the defendants, that while these are factors that may lend to an increased award of costs under r 14.6, the absence of those factors is not of itself a basis for deferring costs.

[7]                 Second, Mr Stephenson noted applications to restrain counsel from acting need to be made early but doing so may result in an application being premature, which proved to be the case here. Here, the application being in part premature arose from the shape of the plaintiffs’ claim changing during the hearing. I do not consider this  a ground for costs to be delayed, it being a factor for which the plaintiffs were responsible.

1      Kennedy v Body Corporate 82981 [2022] NZHC 1927.

[8]                 Third, Mr Stephenson noted opposing counsel accepted  a  further  application may be warranted.  Whether  there  will  ever  be  a  further  application is unknown. If and when that application is made costs on it will be dealt with at that time.

[9]                 Fourth, Mr Stephenson noted I observed the potential for uncertainty in respect of Chapman Tripp’s role given the likelihood of amendment to the pleadings. The reality is, that  is  an  issue  for  another  day  should  there  be  an  amendment  to  the statement of claim and a further application. That uncertainty again arises from the shape of the plaintiffs’ claim changing at the hearing and is not a basis for denying the defendants costs at this time.

[10]             Fifth, Mr Stephenson noted I declined to make the order sought by Chapman Tripp that it be granted leave to represent all defendants. As Mr Wood notes, no such order was made as it was not called for as the plaintiffs failed to show that the defendants’ interests were not the same based on the pleadings as they stand.

[11]I fix costs and disbursements at the agreed sum of $6,309.65.

[12]             I decline the plaintiffs’ application for a direction that those costs not be payable by them now.

Associate Judge Lester

Solicitors:

Lane Neave, Auckland (for Plaintiffs)

Chapman Tripp, Wellington (for Defendants)

Copy to counsel:

D Bigio QC, Barrister, Auckland (for Plaintiffs)