Singh v Body Corporate 207650

[2024] NZCA 150

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA208/2023
 [2024] NZCA 150

BETWEEN	CHERYL SITARA SINGH Appellant
AND	BODY CORPORATE 207650 Respondent

Court:	Courtney, Wylie and Edwards JJ
Counsel:	S P Bryers for Appellant T J G Allan for Respondent
Judgment: (On the papers)	3 May 2024 at 2.30 pm

JUDGMENT OF THE COURT

AThe application for increased costs is declined.

BThe respondent must pay the appellant costs for a standard appeal on a band A basis with usual disbursements.

CThe question of costs in the High Court is to be determined by that Court in light of our judgment dated 27 March 2024.

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REASONS OF THE COURT

(Given by Edwards J)

1. By judgment dated 27 March 2024 we allowed Ms Singh’s appeal and directed that the stay of her proceeding be lifted.[1]  At the request of counsel for Ms Singh, we granted leave to file and serve memoranda relating to costs. 

   [1]Singh v Body Corporate 207650 [2024] NZCA 85.

2. Ms Singh seeks an award of increased costs on the basis that the respondent failed, without reasonable justification, to accept an offer to settle or dispose of the appeal pursuant to r 53E(2)(b)(iv) of the Court of Appeal (Civil) Rules 2005.

3. The offer to settle was contained in a letter dated 8 June 2023.  The letter recorded that Ms Singh was “prepared to settle her appeal by paying a reasonable amount to the Body Corporate to obtain the relevant documents”.  The relevant documents were identified in the letter by reference to an affidavit already filed.  The letter also recorded that any amount sought by the Body Corporate for the cost of supplying the documents should reflect the fact that the Body Corporate was obliged to supply the documents free of charge under the scheme of arrangement.

4. The offer represents a pragmatic approach to resolve the underlying disputes in the substantive proceeding.  However, we do not consider it provides justification for increased costs in this case.  While the offer referred to resolution of the appeal, in substance it related to the merits of Ms Singh’s extant proceeding.  We declined to consider the merits of that proceeding in any detail, noting that it would be tested at trial.[2]  Because the merits of the substantive proceeding were not considered nor determined by us, we are unable to assess whether declining the offer was reasonable in all the circumstances. 

   [2]At [34].

5. Moreover, we note that the offer was expressed in broad terms with the amount Ms Singh was willing to pay to the Body Corporate left unspecified.  This was not an offer capable of immediate acceptance without further negotiation about what was a “reasonable amount”.

6. Finally, in the context of an appeal where the respondent had a judgment in its favour, we cannot say that the failure to accept the offer of settlement was without reasonable justification in all the circumstances.

Result

1. The application for increased costs is declined. 

2. The respondent must pay the appellant costs for a standard appeal on a band A basis with usual disbursements.  The duration of the appeal was 0.25 of a day.

3. The question of costs in the High Court is to be determined by that Court in light of our judgment dated 27 March 2024.

Solicitors:
Grove Darlow & Partners, Auckland for Respondent