Body Corporate 88863 v Pimento Holdings Limited [2012] NZHC 3163 (26 November 2012)

Last Updated: 29 November 2012

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2011-485-1873 [2012] NZHC 3163

BETWEEN BODY CORPORATE 88863 AND ORS Plaintiffs

AND PIMENTO HOLDINGS LIMITED First Defendant

AND MAINZEAL PROPERTY AND CONSTRUCTION LIMITED Second Defendant

AND WELLINGTON CITY COUNCIL Third Defendant

AND T R & E L WYCHERLEY TRADING AS CREATIVE ALUMINIUM

Fourth Third Party

AND MARSDEN DECORATORS LIMITED Sixth Third Party

Hearing: On the papers

Counsel: P J Woods and J W Goddard for Second Defendant

C R Goode for Third Defendant

M Freeman for Sixth Third Party

Judgment: 26 November 2012

In accordance with r 11.5 I direct that the delivery time of this judgment is 3pm on the 26th day of November 2012.

_{COSTS JUDGMENT OF MACKENZIE J}

[1] The parties have filed memoranda. The sixth third party seeks costs on its

_{strike-out application against the second defendant, pursuant to the reservation of}

BODY CORPORATE 88863 AND ORS V PIMENTO HOLDINGS LIMITED HC WN CIV-2011-485-1873 [26

November 2012]

costs in [40] of my judgment of 30 August 2012. Memoranda have been filed by all relevant parties.

[2] Marsden seeks costs on a 2B basis. Its claim, on that basis, totals $14,972. Disbursements of $3,308.47 are also claimed.

[3] In his submissions in support of that quantum of costs, counsel for Marsden notes that there is an overlap in that Marsden’s interlocutory applications for strike- out and summary judgment were filed against Mainzeal and the Council jointly. As I noted in my judgment at [2], the application against the Council was not dealt with at that hearing. After delivery of that judgment, the Council accepted that its third party claim against Marsden was bound to fail. That application was the subject of a minute issued by Associate Judge Bell on 12 September 2012. He struck out the Council’s claim and awarded costs against the Council for the commencement of the defence. He also directed the Council to pay costs of $564 for filing the strike-out and summary judgment applications. That sum was one half of the scale costs on filing an interlocutory application for strike-out and summary judgment. Marsden now seeks the balance of $564 for the filing of its interlocutory application against Mainzeal.

[4] Counsel for Mainzeal submits that the Council should make a 50 per cent contribution to the costs payable to Marsden. Counsel has submitted a schedule setting out the costs which would be payable by Mainzeal and the Council respectively, on that basis. Counsel for the Council has filed a memorandum opposing that application for a 50 per cent contribution from the Council.

[5] I consider that Marsden is entitled to costs against Mainzeal in the amount claimed by it.

[6] I do not consider it appropriate to order that the Council contribute to those costs. The Council has, to some extent at least, “coat tailed” on Mainzeal’s opposition to the third party notice, and may have derived some benefit, in determining its own position, from the judgment given on Mainzeal’s application. However, I do not consider that that provides a sound basis for requiring the Council

to make a contribution to the costs which Mainzeal has incurred in taking the steps which it saw as appropriate to protect its own position in the litigation. The costs position between the Council and Marsden has been determined by the costs order made by Associate Judge Bell, and there are no grounds for disturbing that position.

[7] There will be an order for costs in favour of Marsden against Mainzeal in the sum of $14,972 plus disbursements of $3,308.47, a total of $18,280.47.

“A D MacKenzie J”

Solicitors: Anthony Harper Lawyers, Auckland for Second Defendant

Heaney & Co, Auckland for Third Defendant

Thomas Dewar Sziranyi Letts, Lower Hutt, for Sixth Third Party