Tao v Strata Title Administration Ltd - [2016] NZHC 1821

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-817 [2016] NZHC 1821

BETWEEN
AN LI TAO

Plaintiff

AND

STRATA TITLE ADMINISTRATION LTD

First Defendant

AND

JIGAR PANDYA Second Defendant

UNDER Section 141 Unit Titles Act 2010

BETWEEN AN LI TAO Applicant

AND BODY CORPORATE 198693
Respondent

On the papers

Judgment:

8 August 2016

JUDGMENT OF THOMAS J [COSTS]

This judgment was delivered by me on 8 August 2016 at 11.30 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

TAO v STRATA TITLE ADMINISTRATION LTD & ORS [2016] NZHC 1821 [8 August 2016]

Introduction

[1] Ms An Li Tao is the registered proprietor of one of 36 units in a unit title development at 8 Margan Avenue, New Lynn, Auckland. She filed proceedings making various claims against the defendants, Strata Title Administration Ltd (Strata), the body corporate secretary, and Jigar Pandya, the body corporate chairperson. The defendants’ application for summary judgment against her, on the basis that none of the claims could succeed, was granted by me on 27 April 2006. By the same decision, I dismissed Ms Tao’s application for the appointment of an administrator under s 141 of the Unit Titles Act 2010, (the Act) which had been
opposed by the Body Corporate.1

[2] The defendants/respondent, who I will jointly refer to as “the applicants”,

now seek costs against her, either indemnity costs or an increase on scale costs.

[3] Ms Tao disagrees with the calculations of scale costs, and opposes an award of indemnity or increased costs. She seeks reduced costs or that costs lie where they fall, on the basis that she put effort into trying to resolve the disputes, was representing legitimate complaints, and is impecunious in any event.

Submissions

[4] The applicants say that all the costs to date have been met by Strata Title, but these will be passed on to the Body Corporate, meaning any award less than indemnity costs will be visited on the Body Corporate. They claim indemnity costs of $65,164.75. By their calculations, scale costs are $50,621.00, so a 25 per cent uplift on an increased costs basis would amount to recovery of $63,276.25.

[5] The applicants say this is justified on the basis of the indemnity and increased costs rules. Ms Tao’s complaints could have been dealt with within the body corporate structure process, and her failure to pay her fees was a deliberate choice
which halted those processes. The applicants say that the proceedings were brought

1 Tao v Strata Title Administration Ltd [2016] NZHC 814.

for the ulterior motive of obtaining what she could not achieve through the

Extraordinary General Meeting processes because of her refusal to pay levies.

[6] The applicants allege that Ms Tao’s submissions were incomprehensible, lacked focus and were highly repetitive, and “defied any logical or commercial position when the easy way through her complaints was to pay the levies and then vote toward what she sought.” They maintain she failed to adopt the rules of…

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: [2016] NZHC 1821
Decision Date: 8 August 2016

CaseChat Overview and Summary

The case of Tao v Strata Title Administration Ltd involves Ms An Li Tao, the registered proprietor of a unit in a unit title development in New Lynn, Auckland. She filed various claims against Strata Title Administration Ltd, the body corporate secretary, and Jigar Pandya, the body corporate chairperson. The defendants applied for summary judgment against Ms Tao, which was granted on 27 April 2006, and she was also unsuccessful in her application for the appointment of an administrator under section 141 of the Unit Titles Act 2010. The defendants now seek costs against Ms Tao, either indemnity costs or an increase on scale costs. Ms Tao disagrees with the calculations of scale costs and opposes an award of indemnity or increased costs.

The court had to determine whether the defendants were entitled to indemnity or increased costs, and if so, whether the claim was sufficiently particularised and whether Ms Tao’s behaviour warranted such costs. The court found that Ms Tao's behaviour, while time-consuming and difficult for all parties involved, was not of the high standard required for awarding indemnity costs. However, the court found that Ms Tao's conduct did warrant increased costs, as she ran many arguments which lacked merit, pursued unnecessary steps, and failed to comply with court directions.

The court awarded increased costs with an uplift of 25 per cent, as it was considered appropriate given the circumstances. The court also addressed Ms Tao's complaints about the costs claimed by the defendants, and made adjustments to the scale costs calculation accordingly. The total costs awarded were $60,210, which included a 25 per cent uplift on the adjusted scale costs. The court emphasised that costs should be awarded at a meaningful level, even against an impecunious party, when the party has advanced a case which is poorly pleaded or lacking in merit.

In conclusion, the court found that the defendants were entitled to increased costs, with a 25 per cent uplift on the adjusted scale costs. The court took into consideration the nature of Ms Tao's conduct during the proceedings, as well as the adjustments made to the scale costs calculation based on Ms Tao's objections. The court also highlighted that any deficit in the defendants' actual costs would have to be met by the Body Corporate members, of which Ms Tao is a part.

Orders