Wheeldon v Body Corporate 324525 - [2017] NZHC 985

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2014-488-0122 [2017] NZHC 985

BETWEEN
DEREK PETER WHEELDON AND

CAROL ANN WHEELDON, ANTHONY JOHN BUTCHER AND RUTH BARBARA ROGERS, LARRY LAWRENCE SMALL AND KM TRUSTEE SERVICES LTD, IVOR ANTHONY MILLINGTON AND NEVILLE EADE

Plaintiffs

AND

BODY CORPORATE 324525
Defendant

ROBYN KATHLEEN STENT Counterclaim Defendant

Hearing: On the papers

Counsel:

B E Brill for the Plaintiffs and Counterclaim Defendant
S F Powrie for the Defendant

Judgment:

18 May 2017

COSTS JUDGMENT OF MUIR J

This judgment was delivered by me on Thursday 18 May 2017 at 4.00 pm
Pursuant to Rule 11.5 of the High court Rules.
Registrar/Deputy Registrar
Date:…………………………

Counsel/Solicitors:
B E Brill, B E Brill Ltd, Paihia
S F Powrie, Darlow & Partners, Auckland

WHEELDON v BODY CORPORATE 324525 [2017] NZHC 985 [18 May 2017]

Introduction

[1] This judgment corrects all previous judgments where the Body Corporate has been incorrectly recorded as Body Corporate 342525. The correct title is Body Corporate 324525.

[2] On 11 May 2017 the parties’ memoranda in respect of costs were forwarded to me. The Registry apologises for the oversight in not having earlier done so.

[3] Prior to delivery of this judgment I issued a number of Minutes inquiring as to various aspects of the defendant’s calculations and its disbursement claims. There have been multiple communications from counsel as a result.

[4] In my final judgment1 I awarded costs on a 2B basis in relation to the defendant’s successful defence of the proceedings. I did so with the provisional indication that I considered an allowance for second counsel appropriate, which I now confirm. The proceedings were of sufficient complexity and raised sufficient discrete issues both factually and legally for such an allowance to be made.

[5] I also indicated that the defendant was entitled to costs on its counterclaim against the various plaintiffs for outstanding levies. Such counterclaim totalled
$36,900.75.

[6] At an earlier stage in the proceedings the defendant had sought 2B costs in relation to the issues determined in my interim judgment,2 discounted by 10 per cent to reflect the issues ultimately determined in my final judgment. In its memorandum dated 16 February 2017 it sought indemnity costs equivalent to 10 per cent of its actual costs (totalling $151,198.00) on account of the plaintiffs second cause of action and the counterclaim (both determined in the final judgment). In the
alternative, it sought scale costs with an uplift of 50 per cent.

1 Wheeldon v Body Corporate 342525 [2017] NZHC 87.
2 Wheeldon v Body Corporate 342525 [2015] NZHC 884 (2015) 16 NZCPR 829 (relating to the first cause of action).

Discussion - costs

[7] As the defendant was successful in respect of the issues addressed in both interim and final judgments, I consider the correct course is now to allow costs on defence of the entire proceeding on a 2B basis.

[8] In that respect the defendant claimed $68,623.50, although it later accepted there was an error in its calculation and reduced…

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.

Continue reading Wheeldon v Body Corporate 324525

Details

AGLC: Wheeldon v Body Corporate 324525 [2017] NZHC 985
Case: [2017] NZHC 985
Decision Date: 18 May 2017

CaseChat Overview and Summary

In Wheeldon v Body Corporate 324525, the plaintiffs, including Derek Peter Wheeldon and Carol Ann Wheeldon, Anthony John Butcher and Ruth Barbara Rogers, Larry Lawrence Small and KM Trustee Services Ltd, Ivor Anthony Millington and Neville Eade, sued the Body Corporate 324525. The dispute involved issues relating to the enforcement of unit title levies and other matters. The court considered the matter on the papers and heard submissions from counsel. The primary legal issues involved the determination of costs and disbursements, specifically the defendant's successful defence of the proceedings and its counterclaim for outstanding levies.

The court first addressed the defendant's successful defence of the proceedings, awarding costs on a 2B basis. It determined that the proceedings were complex and raised discrete issues both factually and legally, justifying the allowance for second counsel. The court also considered the defendant's counterclaim for outstanding levies and awarded scale costs on the counterclaim, rejecting the defendant's claims for indemnity or increased costs on the counterclaim. The court made a detailed assessment of the defendant's costs and disbursements, reducing certain claims due to excessive or unsubstantiated time records, and ultimately awarding costs and disbursements in the amount of $102,648.43.

The court's judgment clarifies the correct costs and disbursements awarded to the defendant, Body Corporate 324525, in relation to the successful defence of the proceedings and the counterclaim, taking into account the complexity of the issues and the necessity of certain expenses. The court's final orders are that the defendant is to be awarded costs and disbursements in the specified amount.

Orders