Wheeldon v Body Corporate 342525 - [2016] NZHC 862

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2014-488-0122 [2016] NZHC 862

BETWEEN
DEREK PETER WHEELDON AND

CAROL ANN WHEELDON (FORMER PROPRIETOR OF UNIT 2.4) , ANTHONY JOHN BUTCHER AND RUTH BARBARA ROGERS (UNIT 3.1), LARRY LAWRENCE SMALL AND KM TRUSTEE SERVICES LTD (UNIT 2.6), IVOR ANTHONY MILLINGTON UNIT

3.7) AND NEVILLE EADE (UNIT 3.10), ALL OF BRIDGEWATER BAY APARTMENTS, 3 PAIHIA ROAD, PAIHIA

Plaintiffs/Respondents

AND

BODY CORPORATE 342525
Defendant/Applicant

AND

ROBYN KATHLEEN STENT Counterclaim Respondent/Applicant

On the papers

Appearances:

BE Brill for Plaintiffs/Respondents
TJ G Allan and TJP Gavigan for Defendants/Applicants

Judgment:

3 May 2016

COSTS JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 3 May 2016 at 4:00 pm
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

WHEELDON v BODY CORPORATE 342525 [2016] NZHC 862 [3 May 2016]

[1] On 19 January 2016, I heard an application for an interim injunction brought by Body Corporate 342525 against Ms Stent. Ms Stent opposed the application and also applied to strike out the amended statement of claim which was purported to form the basis of the interim injunction application.

[2] Early in the hearing, it became apparent the matter could be resolved through settlement and compromise, and the parties were able to reach an accord. Ms Stent made an undertaking, which I noted in my minute, dated 19 January 2016. It was, therefore, unnecessary for me to adjudicate on either of the parties’ applications.

[3] The parties are now unable to agree as to costs. Both claim to have been the successful party at the hearing, and both allege that the other party acted unreasonably.

Brief background

[4] Ms Stent lives in the Bridgewater Bay Apartments in Paihia. The apartments have been undergoing construction work to repair damage related to leaky building syndrome.

[5] On 13 January 2016, the Body Corporate applied for a without notice injunction against Ms Stent, seeking to restrain Ms Stent from occupying her apartment unless, or until, she erected a plywood partition between the interior of her apartment and her deck. The Body Corporate said the partition was necessary to ensure compliance with the health and safety related Certificate of Public Use, issued by the Far North District Council. The partition was said to have cost approximately
$400, and the Body Corporate said that the building work on the apartments could not legally continue unless Ms Stent erected it. In support of its application, the Body Corporate filed a statement of claim alleging that Ms Stent had breached her statutory duties under the Unit Titles Act 2010.

[6] Ms Stent opposed the injunction application, and also filed to strike out the supporting statement of claim. Her counsel, Mr Brill, noted that there were procedural issues with the injunction application, including whether a Court could

grant a final injunction on an interlocutory claim. He also questioned the necessity of the partition, and disputed whether the Certificate of Public Use actually required her to erect the partition. Mr Brill also submitted that…

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 862
Decision Date: 3 May 2016

CaseChat Overview and Summary

The case of Wheeldon v Body Corporate 342525 involves an application for an interim injunction brought by the Body Corporate against Ms Stent, who resides in Bridgewater Bay Apartments in Paihia. The Body Corporate sought the injunction to compel Ms Stent to erect a plywood partition between the interior of her apartment and her deck, to comply with a Certificate of Public Use issued by the Far North District Council. Ms Stent opposed the application and sought to strike out the statement of claim. The matter was heard on 19 January 2016, and the court found that the parties had reached a compromise, making it unnecessary to adjudicate on either application. However, the parties disagreed on who should bear the costs of the hearing.

The legal issues before the court included whether it was appropriate to grant an interim injunction in this case, given that it would have the effect of a final injunction, and whether the local authority had the power to issue a Certificate of Public Use applying exclusively to Ms Stent's private apartment. Additionally, the court considered whether Ms Stent had breached her statutory duties under the Unit Titles Act 2010.

The court noted that the injunction proceeding might be unnecessary because Ms Stent had previously allowed contractors access to her apartment. The court expressed hesitation about making such an order and considered it arguable that the local authority did not have the power to issue a Certificate of Public Use applying exclusively to Ms Stent’s apartment. The court adjourned the hearing to allow the parties to negotiate and they were able to reach a compromise. Ms Stent gave an undertaking to allow a contractor entry to her apartment to erect the partition. The injunction application and the strike-out application were, informally, discontinued.

Both parties claimed costs and disbursements, with Ms Stent seeking $27,546.01 on a 2B basis and the Body Corporate claiming $14,185 in indemnity costs or, alternatively, costs of $9,345 calculated on a category 2B basis. The court found that both parties had some measure of success as a result of the compromise, and neither party should be held to have succeeded to such an extent as to justify the making of a costs order in their favour. The court dismissed both applications for costs.

Orders