Maida Vale Management Limited v Lake View Estate Residents Society Incorporated
[2025] NZHC 130
•12 February 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2024-404-000525
[2025] NZHC 130
BETWEEN MAIDA VALE MANAGEMENT LIMITED
First Plaintiff
HOWARD STANLEY MOORE and GILLIAN PATRICIA MOORE
Second Plaintiffs
KENNETH and SERENA MUIR and MKG RESOURCES LIMITED
Third Plaintiffs
SELWYN CURRIE and LIZ YATES
Fourth Plaintiffs…. / cont’d
AND
LAKE VIEW ESTATE RESIDENTS SOCIETY INCORPORATED
First Defendant
VERMONT STREET PARTNERSHIP NO 1 LIMITED
Second Defendant
Hearing: On the papers Counsel:
M Heard and B Forbes for Plaintiff and Second Defendant D Shahtahmasebi and T M Milne for First Defendant
Judgment:
12 February 2025
JUDGMENT OF ANDREW J
[Costs]
This judgment was delivered by me on 12 February 2025 at 11 am, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
MAIDA VALE MANAGEMENT LTD v LAKE VIEW ESTATE RESIDENTS SOCIETY INC [2025] NZHC
130 [12 February 2025]
RAY and CHRISTINE OXENHAM
Fifth Plaintiffs
JASON HAMBROOK and CHERIE LOVETT
Sixth Plaintiffs
Introduction
[1] In my substantive judgment of 22 October 2024,1 I dismissed the plaintiffs’ application for the appointment of a receiver. I also granted declarations that Lot 47 is not “developed property” within the meaning of the levying provision in the Constitution of the Lake View Estate Residents Society Inc (the Society) and that certain breach notices were ultra vires and unlawful.2
[2]This judgment contains my decision on costs.
[3] Both the plaintiffs and the first defendant contend that they are entitled to costs. They both claim that they had substantial success and that the costs award should reflect that fact.
Relevant legal principles
[4] Rule 14.2(1)(a) of the High Court Rules 2016 (the Rules) states that the party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds.
[5] Rule 14.7(d) provides that the Court may reduce the costs otherwise payable under the Rules if the party that succeeded overall has failed in relation to a cause of action or issue which significantly increased the costs of the party opposing costs.
[6] The Court of Appeal has confirmed that, for the purposes of assessing which party has had substantial “success” in a matter and is therefore entitled to costs, in most cases “success on more limited terms is still success”.3 An alternative approach is to consider apportioning costs following a “realistic appraisal” of success with reference to what the litigation sought to achieve, the positions of the parties, the key issues in contest, and the overall result.4
[7]The overriding principle is the interests of justice.
1 Maida Vale Management Ltd v Lake View Estate Residents Society Inc [2024] NZHC 3073.
2 At [93] and [101].
3 Weaver v Auckland Council [2017] NZCA 330 at [26].
4 Packing In Ltd (in liq) v Chilcott (2003) 16 PRNZ 869 (CA) at [5]–[6].
Analysis and decision
[8] The plaintiffs contend that a narrow focus on whether or not a receiver was appointed would miss the forest for the trees. They contend that a realistic appraisal of success can only lead to costs falling in their favour, with perhaps some deduction to reflect the relative success between the parties. They say that they were substantially successful, obtaining important determinations and declarations about the powers and obligations of the Society that ought to enable the Society to move forward in a positive, constructive manner.
[9] The defendant Society says that the plaintiffs’ submissions seek to “downplay” the primary issue underpinning the proceedings. They submit that a commonsense approach is to be taken with realistic consideration to be given to the end result — i.e. a receiver was not appointed.
[10] This issue is not an easy one. That is because the issues are, of course, interrelated. I accept that the issue of whether the breach notices were ultra vires, the levying of Lot 47, and the interpretation of the Settlement Agreement were all relevant to the contention of dysfunction and thus the appointment of a receiver. However, the heart of the dispute and the focus of much of the evidence in submissions was on the issue of the appointment of a receiver and the defendant Society succeeded in relation to that key matter. For all parties, that was the key dispute, and all parties would likely see the outcome of that issue as being the decisive factor.
[11] I reject the plaintiffs’ submission that a “narrow focus” on the appointment of a receiver would miss the point. In my view, the appointment of a receiver was the core and critical issue in the proceedings. I acknowledge that the plaintiffs did succeed on some of the declarations sought, but those successes related to more subsidiary issues and occupied much less hearing time. In my view, it was the defendant Society that had substantial success. The plaintiffs failed with their key aim to remove the Society from decision-making with respect to the roading works and raising the necessary finance. Importantly, the Society has retained those powers.
[12] I accept the need to take a “realistic appraisal” of the issue of success. In undertaking such an appraisal, I also accept that the plaintiffs, while not succeeding in
obtaining a formal declaration, did achieve a degree of clarity and success on the issue of the interpretation of the Settlement Agreement.5 I expressly rejected the interpretation contended for by the Society. My conclusion was that the Society had misdirected itself on its road sealing obligations and “to date” has not taken the necessary steps to achieve the outcome it contractually committed to.
[13] In the circumstances, I find that r 14.7(d) is engaged. The defendant Society had substantial success and is entitled to costs, but those costs should be reduced to account for the measure of success that the plaintiffs had on the subsidiary issues and, most particularly, the interpretation of the Settlement Agreement.
[14] I find that the plaintiffs should pay the defendant Society costs on a 2B basis, plus disbursements, with a 25 per cent reduction in costs in accordance with r 14.7(d). The overriding test is of course the interests of justice and, in my view, that is the just outcome in this case.
[15] I further find that there is no basis to revisit my earlier determination that the plaintiffs should also pay the defendant Society costs on a 2B basis for the failed recall application.6
Result
[16] I order that the plaintiffs are to pay the first defendant, the Lake View Estate Residents Society Inc, costs on a 2B basis and disbursements. There is to be a reduction of 25 per cent to the award of costs.
[17]This results in a costs award in favour of the defendant Society in the sum of
$29,217.75 plus disbursements (as sought) of $9,626.34.7
5 In the plaintiffs’ memorandum on costs dated 15 November 2024 at [5], the plaintiffs have quoted from [72] and [73] of my judgment of 22 October 2024. Regrettably, the quote as recorded in the plaintiffs’ submissions has omitted two key words from the first sentence of [72], namely “to date”. In the context of my key findings in my judgment, those two words which relate, of course, to the critical timing issue, are very important. They should not have been omitted from the quote recorded in the plaintiffs’ submissions.
6 See Maida Vale Management Ltd v Lake View Estate Residents Society Inc [2024] NZHC 3291 at [17].
7 As calculated by the defendant Society in its schedule to counsel’s memorandum of 29 November 2024.
[18] I make no order for costs in relation to the plaintiffs’ priority fixture application. The two-day estimate put forward by the plaintiffs was inaccurate and made without consultation with the Society.8
Andrew J
8 In its minute of 5 August 2024, the Court was critical of the inadequate time estimate given: Maida Vale Management Ltd v Lake View Estate Residents Society Inc CIV-2024-404-525, 5 August 2024 (Minute of Moore J).
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