Singh v Body Corporate 207650

[2019] NZHC 168

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-000099

[2019] NZHC 168

BETWEEN

CHERYL SITARA SINGH

Appellant

AND

BODY CORPORATE 207650

Respondent

CIV-2018-404-000116

BETWEEN

BODY CORPORATE 207650
Judgment Creditor

AND

CHERYL SITARA SINGH

Judgment Debtor

Hearing:	On the papers
Judgment:	15 February 2019

COSTS JUDGMENT OF HINTON J

This judgment was delivered by me on 15 February 2019 at 11.30 am pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors:

Stephen Bryers, Barrister, Auckland Grove Darlow & Partners, Auckland

CHERYL SITARA SINGH v BODY CORPORATE 207650 [2019] NZHC 168 [15 February 2019]

[1]                  This judgment relates to costs on an unsuccessful application for leave to appeal and two associated applications. My judgment declining these applications was issued on 6 November 2018.

Background

[2]                  On 31 July 2018, I delivered judgment against Ms Singh dismissing an appeal from the District Court relating to enforcement of body corporate levies.1

[3]                  Ms Singh then sought leave to appeal to the Court of Appeal; a stay of my judgment pending hearing of that appeal; and she applied to set aside a bankruptcy notice that had been issued against her.

[4]                  On 6 November 2018, I issued judgment refusing leave to appeal.2 In terms of the stay, Mr Bryers accepted that, if I declined leave to appeal, the stay application fell away, which was logically the case. The application to set aside the bankruptcy notice was withdrawn at the outset of the hearing of the application for leave.

[5]                  In dismissing the appeal, I ordered that the Body Corporate was entitled to costs on an indemnity basis, providing they are reasonable.

[6]                  The Body Corporate now seeks indemnity costs in relation to the application for leave to appeal, the application for a stay, and the application to set aside the bankruptcy notice.

[7]More particularly, the Body Corporate seeks

(a)costs on an indemnity basis of $22,906.55, including GST and disbursements of $535.60, in relation to the leave application and the associated stay application; and

(b)costs of $7,297.91, including GST and disbursements of $1,352.41, in relation to the application to set aside the bankruptcy notice.

1      Singh v Body Corporate 207650 [2018] NZHC 1932.

2      Singh v Body Corporate 207650 [2018] NZHC 2872.

[8]                  In its original memorandum, the Body Corporate attached schedules of attendances and relevant invoices.

[9]                  By memorandum dated 29 November 2018, Mr Bryers for Ms Singh submitted there was insufficient information to demonstrate reasonableness and pointed out, in particular, that costs of $22,906.55 sought on the application for leave to appeal were materially higher than the indemnity costs of $7,285 I awarded on the appeal itself. Mr Bryers said Ms Singh would be in a position to respond further once additional information was provided.

[10]              On 7 December 2018, the Body Corporate responded with a lengthy memorandum providing, in particular, further breakdown of the invoices already before the Court.

[11]              There has been nothing further from Mr Bryers and in any event, I do not consider I would be assisted by a further memorandum. I have already made an order for indemnity costs and the present exercise is purely one of determining whether the costs sought are reasonable.

Decision

[12]              I have decided to award total costs of $26,000, including GST and disbursements. As is customary with costs, this is somewhat broad brush, but I have taken into account the following:

(a)No particular challenge was mounted to the $7,297.91 sought in respect of the application to set aside the bankruptcy notice and the many attendances arising out of that. The total charges seem reasonable on the face of the invoices and particulars provided.

(b)In terms of the sum of $22,906.55, I note Mr Bryers’ point that there is a sharp contrast between the indemnity costs sought and ordered on the appeal and indemnity costs sought on the combined application for leave and stay. That is partly because the costs sought on the appeal were very light, but I have the sense the current costs have been

exacerbated by the change in legal personnel, which is a cost that, in my view, should be absorbed, at least in part, by the law firm (and/or their client), rather than leading to an increased costs award.

(c)I agree with the respondent that costs were incurred well beyond the norm on the leave application and I can well understand those costs exceeding costs on the appeal. As I noted in the judgment, the leave application was based on materially different or differently-argued grounds to the appeal. This was particularly the case with the additional, or at least far more specific, argument regarding quorum and apportionment of levies, which required further memoranda and affidavit evidence to be filed. I note that the judgment on the leave application was longer and more technical than that on the appeal. It took materially more time and consideration than the judgment on appeal. This is highly unusual. The same consequence would apply, even more so, to counsel’s attendances, given the need to enquire into the facts and file detailed affidavit evidence.

(d)I also accept Mr Allan’s submission that, as a general matter, the level of costs was driven materially upwards  by  the  manner  in  which  Ms Singh has conducted the proceeding, including the change from her early written submissions, to the submissions filed and made on the day.

(e)The costs sought are in respect of three applications, as opposed to the one appeal.

(f)The better indicator of reasonable indemnity costs on the present applications is a comparison to scale costs, rather than a comparison to the indemnity costs sought on the appeal. I note the respondent’s submission that costs on a 2B basis, plus disbursements, for all three matters would amount to $23,846. I consider scale costs would have been reduced on some counts. For example, I would not have allowed

.25 of a day for appearing at the hearing of the defended application to set aside the bankruptcy notice, given it was withdrawn. Also, the total

hearing time was slightly under half a day, which has already been allowed for under the leave application. Further, $3,345 for written submissions on the stay application seems high in the circumstances, at least in terms of the approach to scale. However, scale costs would still have been in the vicinity of $22,500. This is not significantly less than the total amount claimed by the Body Corporate as indemnity costs, and not far removed from the total amount I have fixed of $26,000.

(g)It is difficult to tell, but I do not see any obvious double-up in the invoices and detailed breakdown provided. I note it is a difficult exercise in itself for a lawyer to have to support and justify an indemnity costs calculation and the Court has to be robust and fair about it, especially in a body corporate context like this one.

[13]              Weighing up all of these matters, I consider $26,000 total costs to be reasonable for all three applications, inclusive of GST and disbursements, and I order accordingly.

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Hinton J