Thomson v Dorchester Apartments Ltd

[2015] NZHC 2931

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2015-485-717 [2015] NZHC 2931

UNDER

Section 164 of the Companies Act 1993

IN THE MATTER

of an application for an injunction restraining a breach of the constitution of Dorchester Apartments Ltd

BETWEEN

ALEXANDER HILL BRUCE THOMSON AND RICHARD NORMAN MARTIN

Plaintiffs

AND

DORCHESTER APARTMENTS LTD Defendant

On the papers
Counsel:	C Matsis for Plaintiffs G J Toebes for Defendant
Judgment:	23 November 2015

JUDGMENT OF CLIFFORD J (COSTS)

[1]      I have received and considered the memoranda on costs.

[2]      In my judgment of 9 October 2015, I concluded by saying I saw no reason why costs should not follow the event.

[3]      I remain of that view.  The question that I think does need to be considered, however, is Mr Toebes’ submission that, in the circumstances, payment of costs should await the outcome of the substantive proceeding.  I recognise of course that the Rules provide as Mr Matsis has correctly pointed out for costs on interlocutory applications normally to be dealt with at the time those applications are resolved.

However, that is not a universal rule.

THOMSON v DORCHESTER APARTMENTS LTD [2015] NZHC 2931 [23 November 2015]

[4]      The  defendant,  Dorchester Apartments  Ltd,  represents  all  the  owners  of apartments in the Dorchester complex.   It is not, itself, in that sense a separate business entity.  This is essentially a dispute between owners.  Questions of the need to raise funds to meet the award could arise.   A costs order against the company would, indirectly, also appear to involve the plaintiffs paying costs to themselves.

[5]      In these unusual circumstances, I think the award and payment of costs is best left until the resolution of the substantive proceeding.

[6]      I therefore decline the plaintiffs’ application at this time.

Clifford J

Solicitors:

Gault Mitchell Law, Wellington for Plaintiffs
JT Law, Wellington for Defendant