Body Corporate S90876 v Palmer Trading Limited

[2022] NZHC 785

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2020-404-000941

[2022] NZHC 785

IN THE MATTER OF

Declaratory Judgments Act 1908 and an agreement dated 15 April 2008

BETWEEN

BODY CORPORATE S90876

Plaintiff

AND

PALMER TRADING LIMITED

Defendant

Hearing:	On the papers
Counsel:	D G Hayes for the Plaintiff T J Rainey for the Defendant
Judgment:	13 April 2022

JUDGMENT OF VAN BOHEMEN J

[as to costs]

This judgment was delivered by me on 13 April 2022 at 2.00pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:

Hunwick Law Limited, Hamilton Pidgeon Judd Law Limited, Hamilton FortyEightShortland Barristers, Auckland

BODY CORPORATE S90876 v PALMER TRADING LIMITED [as to costs] [2022] NZHC 785 [13 April 2022]

[1]                 In a judgment dated 10 February 2022, I granted the application sought by the Body Corporate and made a declaration that the Caretaking Agreement executed by the Body Corporate and Palmer Trading Ltd on 15 April 2008 was valid only for an initial term of five years.1

[2]                 I also held that, in the normal course, the Body Corporate would be entitled to costs on a 2B basis because it succeeded in its principal application but noted that because the Body Corporate was represented by its chair, Mr Hayes, there may be a question as to whether the usual costs rules should apply. I said that if the parties were unable to agree costs, they may submit memoranda.2

[3]                 In a memorandum dated 28 February 2022, Mr Hayes, seeks costs on a 2B basis, being $15,535.00 for 6 days for interlocutory matters and preparation, and 0.5 of a day hearing time, plus disbursements of $2,680.00.

[4]                 In a memorandum dated 10 March 2022, Mr Rainey, counsel for Palmer Trading, submits that the Body Corporate should be treated as a lay litigant appearing on behalf of the Body Corporate. He says that, to the knowledge of the defendant, the Body Corporate had not passed any resolution appointing Mr  Hayes  as  counsel.  Mr Rainey also notes that the minutes of the Body Corporate’s Annual General Meeting held on 3 July 2021 record that Mr Hayes was volunteering his time. For these reasons, Mr Rainey submits that the Body Corporate is entitled to recover its disbursements but is not entitled to an award of costs for Mr Hayes’ time.

[5]                 Mr Rainey agrees that the proceeding is appropriately categorised as a 2B proceeding and says that, if the Court decides that the Body is entitled to costs for  Mr Hayes’ time, he accepts Mr Hayes’ calculation of costs, save for an adjustment to of the hearing time because his records show the hearing took only 0.25 of a day.

[6]                 In a memorandum dated 12 March 2022, Mr Hayes points out that the Body Corporate’s claim was filed by Hunwick Law Ltd who were his instructing solicitors. He notes that the Body Corporate passed a resolution ratifying the appointment of

1      Body Corporate S90876 v Palmer Trading Ltd [2022] NZHC 146, at [92].

2      At [93] – [94].

Hunwick Law as solicitors in this proceeding and that Mr Rainey has previously accepted the validity of that resolution. That acceptance was recorded by Whata J in his judgment concerning the validity of other resolutions adopted by the Body Corporate.3

[7]                 Given this background, I am satisfied that Hunwick Law was properly appointed as solicitors for the Body Corporate and  that  Hunwick  Law appointed Mr Hayes as counsel. I am also satisfied that the minutes of the 2021 Annual General Meeting do not affect or reflect these arrangements.

[8]                 While Mr Hayes does not take issue with Mr Rainey’s calculation that the hearing lasted only 0.25 days, the Court records show that the hearing took two hours and 32 minutes; in other words, most of the morning. I am satisfied, therefore, that hearing time of 0.5 of a day is appropriate.

[9]                 The Body Corporate is entitled to costs of $15,535.00 plus disbursements of 2,680.00. I order accordingly.

G J van Bohemen J

3      Body Corporate S90876 v Palmer Trading Ltd [2021] NZHC 192 at [11].