Shelf Company no.5 Limited v Frema Properties Limited

[2019] NZHC 1502

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-002038

[2019] NZHC 1502

BETWEEN

SHELF COMPANY NO. 5 LIMITED

First Appellant

SHANE GALPIN and BALLU KHAN
Second Appellants

AND

FREMA PROPERTIES LIMITED

Respondent

Hearing:

On the papers

Counsel:

KF Gould for Appellants

VTS Purusram for Respondent

Judgment:

28 June 2019

JUDGMENT OF DOWNS J

(Re: Costs)

This judgment was delivered by me on Friday, 28 June at 3 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

DMG Solicitors, Auckland. Victoria Lawyers, Auckland. KF Gould, Auckland.

SHELF COMPANY NO. 5 LTD v FREMA PROPERTIES LTD [2019] NZHC 1502 [28 June 2019]

[1]                  Shelf Company No 5 Ltd1 was unsuccessful on its strike-out appeal. Frema Properties Ltd2 seeks 2B costs, increased by 50 per cent. Frema argues Shelf “used [proceedings] in an abusive manner to avoid the payment of unpaid rent…”.

[2]                  Shelf implicitly accepts it is liable to pay 2B costs, save in relation to the case on appeal. Shelf disputes there are grounds for increased costs, noting it successfully identified an error of law in the District Court judgment. It maintains it may well succeed when the claim goes to trial.

[3]My reasons can be very brief.

[4]                  Frema was successful. Costs should follow the event.3 However, no increase is justified. Frema’s allegation of bad faith is unsubstantiated. And, as Shelf observes, it identified an error of law in the District Court judgment. I also accept Shelf’s submission Frema cannot claim for step 55, preparation of the case on appeal.

[5]Shelf must pay Frema’s costs of $8,808.50, plus reasonable disbursements.

……………………………..

Downs J

1      Shelf.

2      Frema.

3      High Court Rules 2016, r 14.2(1)(a).