Memelink v Body Corporate 81012

[2020] NZHC 2693

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2020-485-000370

[2020] NZHC 2693

UNDER

the Unit Titles Act 1972 and Unit Titles Act 2010 and Unit Tittle Regulations 2011

IN THE MATTER OF

Sections 210–216 of the Unit Titles Act 2010

BETWEEN

HARRY MEMELINK

Applicant

AND

BODY CORPORATE 81012

Respondent

Hearing:	[On the Papers]
Appearances:	H Memelink (Self-represented Applicant) A S Olney for Respondent
Judgment:	14 October 2020

JUDGMENT OF EDWARDS J

[re Costs]

This judgment was delivered by me on 2020 at 14 October 2020 at 4.00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Counsel:     A S Olney, Wellington

Solicitors:    Steve Gill Law, Lower Hutt

Copy To:     H Memelink, Lower Hutt

MEMELINK v BODY CORPORATE 81012 [2020] NZHC 2693 [14 October 2020]

[1]                  Mr Memelink is the trustee of the Link Trust No 1, which owns a unit in a building in Lower Hutt. He applied under the Unit Titles Act 2010 for minority relief. On 17 September 2020, he filed a notice of discontinuance. The respondent seeks costs and disbursements of $7,758.

[2]                  Rule 15.23 of the High Court Rules 2016 provides that a plaintiff who discontinues a proceeding against a defendant must pay costs up to and including the discontinuance unless the defendant otherwise agrees or the Court otherwise orders. This rule creates a rebuttable presumption which is designed to give a certain and predictable outcome upon discontinuance.

[3]                  Mr Memelink says that he discontinued the proceeding when he discovered that his complaint fell within the jurisdiction of the Tenancy Tribunal. He makes complaints about the lateness of the documents filed by the respondent in opposition to his claim, and says the costs sought by the respondent are unwarranted, excessive and constitute an abuse of power.

[4]                  None of these grounds are sufficient to rebut  the presumption  in  r 15.23.  Mr Memelink is to be commended for discontinuing the proceeding when he did in favour of the Tenancy Tribunal jurisdiction. However, the respondent was required to take steps, and incur costs, in opposition to the application, and is entitled to an award of costs for those steps.

[5]                  It is not clear to me whether the allegation about late filing is correct, but in any event, any lateness has not added to the costs of Mr Memelink in bringing the proceeding. Nor does it provide a reason to reduce costs.

[6]                  The costs are calculated according to the scale provided in Schedule 2B of the High Court Rules 2016. I am satisfied that this categorisation is appropriate. I note that in a  judgment  dated  20  February  2017  between  the  same  parties  where  Mr Memelink was again seeking minority  relief,  he  was  ordered  to  pay  the  Body Corporate’s costs on a Schedule 2B basis.1

1      Memelink v Body Corporate 81012 [2016] NZHC 3151.

[7]                  Accordingly, I award costs in favour of the respondent in the sum of $7,648 plus disbursements of $110, being a total of $7,758.

Edwards J