Yee Good Fortune Investments Limited v Body Corporate no 392619

[2017] NZHC 1221

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-2242 [2017] NZHC 1221

UNDER

section 119 of the Residential Tenancies

Act 1986 and Part 20 of the High Court
Rules

BETWEEN

YEE GOOD FORTUNE INVESTMENTS LIMITED

Appellant

AND

BODY CORPORATE NO 392619

Respondent

Hearing:	On the papers
Appearances:	N Dunning for the Appellant S Powrie for the Respondent
Judgment:	7 June 2017

JUDGMENT OF GORDON J [As to costs]

This judgment was delivered by me on 7 June 2017 at 2.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:           Nat Dunning Law, Wellington

Grove Darlow & Partners, Auckland

YEE GOOD FORTUNE INVESTMENTS LTD v BODY CORPORATE 392619 [2017] NZHC 1221 [7 June

2017]

[1]      On  12 April  2017  I  issued  a  judgment  allowing  the  appeal  brought  by Yee Good Fortune Investments Ltd (YGFI).   There were six questions of law on appeal and YGFI was successful in relation to three of those questions.  In light of this mixed success, I suggested that this might be an appropriate case in which to let costs lie as they fall.  However, I requested the parties to consult with each other and, if possible, file a joint memorandum.  In the event that they were unable to come to agreement regarding costs, I directed that separate memoranda be filed.

[2]      YGFI has now filed submissions seeking costs against the Body Corporate on two grounds.   The first ground is that despite its mixed success in relation to the various questions of law on appeal, YGFI ultimately achieved its desired outcome, namely the overturning of the District Court decision on appeal.   YGFI therefore seeks, as a minimum, an award of costs on a 2B basis for both the District Court and High Court proceedings.

[3]      YGFI goes further and seeks increased or indemnity costs under r 14.6(3)(d) based on the conduct of the Body Corporate outside of the present proceeding. Counsel for YGFI, Mr Dunning, informs the Court that on 10 October 2016, after YGFI had filed its appeal in the High Court, the Body Corporate filed proceedings in the High Court at Wellington seeking to liquidate YGFI for non-payment of the contested levies (plus interest and administrative charges).  Mr Dunning submits that the filing of liquidation proceedings at that time was inappropriate or improper, unreasonable and the cause of unnecessary and unjustified expense to YGFI.   In Mr Dunning’s view, this conduct provides an appropriate basis for making an order for increased or indemnity costs against the Body Corporate in the present proceeding.

[4]      The Body Corporate opposes YGFI’s submissions regarding costs, but does

not seek an award of costs against YGFI.

[5]      Having considered the submissions filed by both parties regarding costs, I am satisfied that this is an appropriate case in which to make an order for costs in favour of YGFI.   I accept Mr Dunning’s submission that while YGFI may not have succeeded on every question of law, the appeal was ultimately successful.  But for

the appeal, YGFI would have been required to pay a significant sum of money in levies, interest and administrative charges on the basis of a District Court decision that was flawed in its application of the relevant law.  However, I decline to make an order  for  costs  against  the  Body  Corporate  in  relation  to  the  District  Court proceeding.  Mr Dunning did not provide any authority to support his application for an order of that nature.

[6]      I do not consider that this is an appropriate case in which to make an order for increased or indemnity costs.  There may be force in Mr Dunning’s submission that the filing of a liquidation proceeding by the Body Corporate pending the present appeal was improper and/or unreasonable.  In my view, however, any improper or unreasonable conduct can be appropriately dealt with by way of a costs award in the liquidation proceeding, rather than the present case.

[7]      YGFI is entitled to costs on a 2B basis in the sum of $10,927.00 and disbursements of $540.00.

Gordon J