Waimauri Limited v Powell Junior Limited

[2025] NZHC 1139

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-001694

[2025] NZHC 1139

UNDER

Part 18 of the High Court Rules 2016

AND UNDER

Section 137 of the Property Law Act 2007

BETWEEN

WAIMAURI LIMITED

Plaintiff

AND

POWELL JUNIOR LIMITED

Defendant

Appearances:

M J W Lenihan for Plaintiff

J R Harvey for the Defendant (Self-represented)

Judgment:

13 May 2025

JUDGMENT OF ANDERSON J

[Costs]

This judgment was delivered by me on 13 May 2025 at 3:00 pm pursuant to r 11.5 of the High Court Rules 2016.

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

Solicitors:    Brown Partners Lawyers, Auckland Copy to         J Harvey

WAIMAURI LTD v POWELL JUNIOR LTD [2025] NZHC 1139 [13 May 2025]

[1]                  By my decision dated 28 February 2025 I made an order for possession against Powell Junior Limited (PJL) under s 137(1)(c) of the Property Law Act 2007 based on PJL’s failure to remedy defaults to pay sums due set out in a Property Law Act notice issued under s 119.

[2]                  In my decision I stated that Waimauri was entitled to costs and sought submissions if costs could not be agreed. Waimauri filed submissions in support of costs on 14 March 2025. PJL has been given latitude to file submissions late in response. That opportunity has not been taken up. Accordingly, I now proceed to determine costs.

[3]                  Waimauri seeks costs on a 2B basis and has set out tables of costs and disbursements with its submissions.1 I have reviewed the annexed tables of costs and disbursements and these are in order.

[4]                  The only issue arising is whether Waimauri should receive costs arising from its unsuccessful summary judgment application in which Harland J reserved costs. In my view, costs in favour of Waimauri are appropriate on the principles in NZI Bank Ltd v Philpott.2

[5]                  I accept Waimauri’s submission that the case squarely falls within the Philpott criteria. While summary judgment was declined, Waimauri wholly succeeded at trial as the defence had no basis. Thus, costs in both sets of proceedings should be awarded to Waimauri.

[6]                  Because of procedural issues relating to the summary judgment application, three sets of separate submissions were required. In essence, the application was heard over three separate days. Waimauri seeks 2B costs for three separate sets of submissions. Having reviewed the file, I consider it is appropriate to permit costs for three sets of submissions in light of the unusual procedural route requiring three hearings. Accordingly, I order costs as sought by the plaintiff as follows:

1      Waimauri has contractual entitlement to indemnity costs but maintains its stance previously communicated to Mr Harvey that it does not seek these.

2      NZI Bank Ltd v Philpott [1990] 2 NZLR 403.

(a)Costs in the sum of $86,398.50;

(b)Disbursements of $12,406.39.3

Anderson J

3      GST exclusive.