BODY CORPORATE 198245 AND ORS V AUCKLAND CITY COUNCIL AND ORS HC AK CIV 2006-404-002651 [2009] NZHC 1124 (26 August 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                                             
   CIV 2006-404-002651

                 BETWEEN                             BODY CORPORATE 198245
                             
                       First Plaintiff

                 AND                                 ALISTAIR JOHN SMITH AND OTHERS
    
                                                Second Plaintiffs

                 AND                                 AUCKLAND
CITY COUNCIL
                                                     First Defendant

                                             
                                     .................../contd
Hearing:         On the papers

Counsel:         GB Lewis and JA Webber
for plaintiffs
                 SA Thodey for first defendant
                 RL Moses for second and sixth defendants and first
and fourth fourth
                 party
                 JK Stewart for fourth defendant and second fourth party
              
  MJ Borcoski for fifth defendant
                 AH Greenstreet for seventh defendant and fifth and seventeenth third
        
        parties
                 NJ Pye for eighth defendant and second third party
                 LM Reed for eighth third party
                 LK Sabo for eleventh third party

Judgment:        26 August 2009 at 12:15pm


                     JUDGMENT OF
ASSOCIATE JUDGE FAIRE
                                 [as to costs]


                       This judgment was delivered by me on
26 August 2009 at 12:15pm
                                 pursuant to Rule 11.5 of the High Court Rules.


                    
                    Registrar/Deputy Registrar

                                              Date...............


Solicitors: 
 Grimshaw & Co, PO Box 6646, Auckland for plaintiffs
              Heaney & Co, PO Box 105 391, Auckland for first defendant
   
          Morgan Coakle, PO Box 114, Auckland for second and sixth defendants
              Bell Gully, PO Box 4199, Auckland for
third defendant
              Minter Ellison Rudd Watts, PO Box 3798, Auckland for fourth defendant
              Kennedys, PO Box
3148, Auckland for fifth defendant
              Jones Fee, PO Box 1801, Auckland for seventh defendant
              Keegan Alexander,
PO Box 999, Auckland for second third party
              Young Hunter, PO Box 929, Christchurch for fifth third party
         
    Smith & Partners, PO Box 104 065, Waitakere for seventh third party
              Sheiff Angland, PO Box 2180, Auckland for eighth
third party
              DLA Phillips Fox, PO Box 160, Auckland for tenth third party
              Hesketh Henry, Private Bag 92
093, Auckland for eleventh third party

BODY CORPORATE 198245 AND ORS V AUCKLAND CITY COUNCIL AND ORS HC AK CIV 2006-404-
002651
26 August 2009

AND   ANTE ARCHITECTS LIMITED
      (FORMERLY AVERY TEAM
      ARCHITECTURE LIMITED AND
      AVERY ARCHITECTS LIMITED)
      Second Defendant/First Fourth Party

AND   REDWOOD BUILDERS LIMITED (IN
      LIQUIDATION)
      Third Defendant

AND   AUCKLAND
PROPERTY
      RESTORATION LIMITED
      Fourth Defendant/Second Third Party

AND   VISION CONSTRUCTION LIMITED
      Fifth Defendant/Third
Fourth Party

AND   AVERY TEAM ARCHITECTURE
      LIMITED
      Sixth Defendant/Fourth Fourth Party

AND   HOLMES CONSULTING GROUP
      LIMITED
      Seventh Defendant/Fifth Fourth Party

AND   METALCRAFT INDUSTRIES LIMITED
      Eighth Defendant/Second Third
Party

AND   EUROPLASTER LIMITED (IN
      LIQUIDATION)
      First Third Party

AND   METALCRAFT INDUSTRIES LIMITED
      Second
Third Party

AND   PENGALLY ENTERPRISES LIMITED
      (IN LIQUIDATION)
      Third Third Party

AND   TAL LIMITED (no steps taken)
      Fourth Third Party

AND   THE GLASS BLOCK CO LIMITED
      (discontinued)
      Fifth Third Party

AND   CLAYMAR HOLDINGS
LIMITED
      (formerly KUMEU TIMBER JOINERY
      LIMITED) (no steps taken)
      Sixth Third Party

AND   KELL ENTERPRISES LIMITED
      (formerly PENGELLY ENGINEERS
      LIMITED)
      Seventh
Third Party

AND   RYAN GROUP LIMITED
      Eighth Third Party

AND   GLASS RELATE GLASS STRUCTURES
      LIMITED (no steps taken)
      Ninth Third Party

AND   HOLMES CONSULTING GROUP
      LIMITED (Discontinued)
      Tenth Third Party

AND   TEXTURERITE LIMITED
      Eleventh Third Party/Sixth Fourth Party

AND   STRATEGIC PROPERTY
      DEVELOPMENTS LIMITED
      Twelfth Third Party

AND
  TREVOR HUTCHING
      Thirteenth Third Party

AND   ASTUTE BUILDING ASSESSMENTS
      LIMITED
      Fourteenth Third Party

AND
  IAN WALLACE
      Fifteenth Third Party

AND   JASON SEARLE
      Sixteenth Third Party

AND   HENRY JOHN HARE
      Seventeenth
Third Party

[1]    The first defendant seeks an order for costs in relation to two interlocutory
applications.


[2]    In the
first application, the first defendant sought orders striking out a number
of parties from this proceeding.


[3]    In the second
application the first defendant sought further and better
discovery.


[4]    Neither application proceeded to a defended hearing.
The orders on both
applications were made on an unopposed basis on 17 July 2009.


[5]    In relation to the strike-out application,
the order made struck out six retail
unit owners as plaintiffs. It also struck out that part of the Body Corporate claim
which relates
to the retail units. This proceeding continues in respect of the other
unit owners and for the balance of the Body Corporate's claims.


[6]    The first defendant has modified the claim for costs which it originally made.
It seeks costs and disbursements on the strike-out
application of $5262. That figure
is calculated based on the paragraph references contained in Schedule 3 to the High
Court Rules
and based on band B as defined in r 14.5. In some cases, a time
allowance determined by analogy with that set out in Schedule 3 is
claimed. Where
that occurs, reliance is placed on r 14.5(1)(b). A breakdown of the amount claimed
with references to the paragraph
numbers in Schedule 3 is as follows:




Paragraph in Description                 Allocated        Discount by Amount
Schedule 3
                              days             analogy     claimed


                 Affidavit of
4.5                          
           1.5              6/26ths          $554.00
                 Documents


                 Production of
4.6            
                         1                6/26ths          $369.00
                 documents

4.7              Inspection of  
         1.5              6/26ths         $554.00
                 documents


4.10             Filing and service of .4        
                         $640.00
                 memoranda for case
                 management
                 conferences on
15
                 July 2009

4.12             Preparation,    filing .6                                 $960.00
              
  and service of strike-
                 out application

4.17             Appearances at case .2                              
     $320.00
                 management
                 conferences on 17
                 July 2009

4.18             Sealing
orders           .2                               $320.00


                                                                    
      $3717.00
                                                           Total:


[7]    In addition to the above claims, the first
defendant seeks disbursements being
the filing fee $600, and an expert's fees for surveying services, including the
preparation of
an affidavit relating to the strike-out application, for a total of $945.
The invoice for the expert has been made available. Although
initially questioned
the plaintiff has indicated it does not seek to file any further document in opposition
to the revised claims
that are made. In terms of r 14.12(5) I approve the expert's
account as a disbursement.


[8]    This part of the application for costs is opposed by the plaintiff on the
following grounds:



      a)      A final determination of the rights of the parties on the strike-out
               application may change with appeals
with the result that these parties
               might be able to revive their claims;

       b)      There are some 20 owners
or former owners who are continuing with
               the claims and therefore will be able to meet any costs award that is
  
            subsequently made;


       c)      A number of the claims would have been carried out in any event;


       d)    
 The claims for memoranda on 15 July 2009 and for the appearance on
               17 July 2009 were for the defendants' benefit.
The matter could have
               been resolved at an earlier conference on 16 June 2009.


[9]    I deal with each of the grounds
in opposition.


[10]   The strike-out determines the position in this proceeding.           I see no
justification for deferring
the entry of costs on this ground. The defendants have in
fact been successful against the parties who have been struck from the
proceeding
and are therefore entitled to costs against those parties.


[11]   In respect of the second ground in opposition, the
apportionment undertaken
by the defendants in reliance on r 14.5(1)(b) ensures that there can be no double-
counting or partial additional
recovery. By adopting an apportionment position
between the plaintiffs, a fair and equitable outcome to responsibility for costs
is
achieved. Accordingly, I reject this ground in opposition.


[12]   In relation to the third ground in opposition, by apportioning
the Schedule 3
costs in the way the defendants have apportioned it, there is no risk of double-count.
Accordingly, I see no reason
to give the plaintiffs who have been struck from the
proceeding some credit arising from the position of remaining plaintiffs.  
       The
approach adopted by the defendants simply apportioned responsibility for a number
of the interlocutory steps that were
taken. It is only proper that those plaintiffs pay
their share as they have in effect been unsuccessful in this proceeding. I reject
the
third ground in opposition.


[13]   I refer to the fourth ground.         In my view, the need for the further
memorandum and
the attendance to finalise the strike-out application on 17 July

2009 was for the defendants' convenience. Accordingly, I do not
allow for the filing
of the memorandum, $640, and the appearance at the case management conference,
$320. The result is that I do
not allow $960 of the amount claimed by the plaintiffs
in the revised claim.


[14]     In relation to the strike-out application,
the plaintiffs who have been struck
from the proceedings shall pay costs of $2757, plus disbursements of $1545.


[15]     In respect
of the second application, the first defendant's application for
further and better discovery, there is a large measure of agreement
between the
parties as to the approach that should be adopted with respect to this application.
The application related to the plaintiffs
­ Unit 21, Acquisition Corporation Limited
and Unit 14U, Craig Alexander Meek and Bruce Raymond Shepherd.


[16]     The plaintiffs
submits that any cost order should be limited to an order
against Acquisition Corporation Limited as a supplementary affidavit of
documents
was filed on behalf of the Unit 14U owners, Craig Alexander Meel and Bruce
Raymond Shepherd. That position is accepted
by the first defendant.


[17]     The one area where there is some contention relates to the necessary
appearance on 17 July 2009
and, for that matter, the preparation of a memorandum
for it. It will be recalled that I disallowed it in respect of a strike-out
application.
The same reasons cannot be applied in respect of the discovery application. The
result is that the first defendant is
entitled to costs of $960 pursuant to 4.12 of
Schedule 3 for the preparation and filing of the application, and $640 for the filing
and service of the memoranda for the appearance on 17
July 2009, pursuant to 4.10
of the Third Schedule. In addition, an allowance for the appearance on 17 July 2009
must be made pursuant
to 4.17 of the Third Schedule and in the sum of $320. The
above results in an allowance of costs in relation to the discovery application
of
$1920.     Disbursements, being the filing fee of $600 on that application, are
appropriate.


[18]     Accordingly, I order that
Acquisition Corporation Limited pay costs in
relation to the discovery application of $1920, plus disbursements of $600.

[19] 
 Orders for costs and disbursements are made in terms of [14] and [18] of this
judgment.




                                   
                 _________________________
                                                                           JA Faire
 
                                                                  Associate Judge