Memelink v Body Corporate 68792

[2021] NZHC 1277

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2016-485-141

[2021] NZHC 1277

IN THE MATTER

of a claim for breaches of the Unit Titles Act 2010, Unit Titles Regulations 2011

BETWEEN

HARRY MEMELINK AND CISCA FORSTER

Plaintiffs

AND

BODY CORPORATE 68792

Defendant

Hearing:	On the papers
Appearances:	D L Livingston for the Plaintiffs A O’Connor for the Defendant
Judgment:	1 June 2021

JUDGMENT OF COOKE J

(Costs)

[1]    By judgment dated 20 April 2021 I granted the defendant’s application to strike out these proceedings under r 15.2 of the High Court Rules 2016 for want of prosecution.1 I granted the defendant the cost of the application on a 2B basis.2 By memorandum dated 6 May 2021 the defendant has claimed costs, and by memorandum dated 26 May 2021 the plaintiffs have responded taking issue with some of the items claimed.

1      Memelink v Body Corporate 68792 [2021] NZHC 835.

2 At [33].

MEMELINK v BODY CORPORATE 68792 [2021] NZHC 1277 [1 June 2021]

[2]    Mr Livingston for the plaintiffs has referred to the fact that an appeal has been lodged against the judgment. But the lodgement of the appeal does not affect the award of costs.

[3]    There is no dispute in relation to items 22, 24, 26 and 29 in the claim for costs. But the defendant also claims costs under step 32, for preparing for the hearing. I accept Mr Livingston’s submission that that step is not available for the hearing of an interlocutory application, and his suggestion that it is appropriate to make an allowance for preparing an affidavit in support, and that the allowance of half a day is appropriate for that step. I accordingly agree with the plaintiffs’ calculation in relation to that hearing, and that the amount in question should be $7,289.50.

[4]    Given that the strike out application finally disposed of the proceedings the defendant has also sought a costs award in relation to the costs of the proceeding overall. In opposing that course the plaintiffs have taken the somewhat technical point that the costs entitlement should only be for the interlocutory application, and that the order in the judgment only related to the “costs of this application”. The defendant is, however, entitled to costs of the proceeding given that they have been determined in the defendant’s favour, and it is appropriate that they be set now in conjunction with the successful strike out application. I might have contemplated giving the plaintiffs an opportunity to provide further submissions on this aspect of the costs application, but given that the defendant is only seeking a relatively modest award — limited to the filing of the defence under step 2 in the total amount of two days — and that the plaintiffs have had an opportunity to respond to this aspect of the claim I do not think it is necessary to do so.

[5]    The defendant’s claim is, however, inaccurate because it seeks to use the current daily recovery rate for the award. When the daily recovery rates are changed the change only has prospective effect.3 It follows that the daily recovery rate used should be that in effect at the time that the defence was filed. The first statement of defence was filed in April 2016 and an amended statement of defence was filed in May 2017. The applicable daily recovery rate at that time was $2,230. I agree that two

3      EA v Rennie Cox Lawyers (No 3) [2020] NZHC 1372, (2020) 25 PRNZ 213 at [17]–[18].

days under time band B is a fair allocation and that the additional amount the defendant is entitled to by way of costs is accordingly a further $4,460.

[6]    This amounts to a total award of $11,749.50. The defendant has not claimed any disbursements. The defendant is awarded this amount accordingly.

Cooke J

Solicitors:

Livingston & Livingston, Wellington for the Plaintiffs Surridge & Co, Porirua for the Defendant