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 The application to set aside the bankruptcy notice was withdrawn at the outset of the hearing of the application for leave.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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NZHC 168
Decision Date: 15 February 2019

CaseChat Overview and Summary

Cheryl Sitara Singh filed an appeal against Body Corporate 207650, which was dismissed by the High Court on 31 July 2018. Following the dismissal, Ms Singh applied for leave to appeal to the Court of Appeal, a stay of the judgment pending the hearing of that appeal, and an application to set aside a bankruptcy notice issued against her. The Body Corporate sought indemnity costs for these three applications, which were initially opposed by Ms Singh on the basis that there was insufficient information to demonstrate the reasonableness of the costs. The Body Corporate subsequently provided further information, leading to the court's consideration of the reasonableness of the costs claimed.

The legal issues the court had to decide included whether the costs claimed by the Body Corporate were reasonable and whether the costs were proportionate to the applications made. The court also had to consider whether the costs claimed were exacerbated by the change in legal personnel and whether Ms Singh's conduct had materially driven up the level of costs.

The court determined that the costs claimed by the Body Corporate were reasonable and proportionate to the applications made. The court took into account the additional arguments and evidence required for the leave application, the change in legal personnel, and the manner in which Ms Singh had conducted the proceedings. The court compared the costs claimed to scale costs and found that the total amount claimed by the Body Corporate was not significantly less than the amount the court had fixed as reasonable costs. The court also noted that there did not appear to be any obvious double-up in the invoices and detailed breakdown provided by the Body Corporate.

The court ordered that the Body Corporate was entitled to total costs of $26,000, including GST and disbursements, in relation to the application for leave to appeal, the associated stay application, and the application to set aside the bankruptcy notice. The court found that this amount was reasonable and proportionate to the applications made, taking into account all relevant factors.

Orders