Knight v Body Corporate 81340

[2020] NZHC 1594

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2020-485-18

[2020] NZHC 1594

BETWEEN

ZENA RENEE KNIGHT

First Appellant

TENUS LIMITED
Second Appellant

AND

BODY CORPORATE 81340

Respondent

On the papers

Counsel:

N Dunning for the Appellants

A J Knowsley and B R J Ruback for the Respondent

Judgment:

7 July 2020

JUDGMENT OF CULL J

[Costs]

[1]        In my judgment of 25 May 2020, I dismissed the appeal and awarded costs to the respondent on a 2B basis.

[2]        The appellant challenges the inclusion of three items in the respondent’s schedule of costs and seeks that they be disallowed.

[3]        The three items, as correlated to the costs Schedule 3 of the High Court Rules 2016, are:

(53)     commencement of response to appeal or cross-appeal;

KNIGHT v BODY CORPORATE 81340 [2020] NZHC 1594 [7 July 2020]

(10)preparation for first case management conference (including discussion about discovery); and

(11)filing memorandum for first or subsequent case management conference or mentions hearing.

[4]        Dealing with each in turn, the first challenge is that no step was taken by the respondent in response to the appeal. I accept the appellant’s submission that the comparable Item 1 in Schedule 3 clearly indicates a step is contemplated. No such step was taken here and that claim is declined.

[5]        Secondly, there was a mentions-only hearing but no case management conference. Mr Dunning for the appellant submits that he prepared and submitted the document intitled “Joint Memorandum of Counsel for Case Management Conference”, which he sent to Counsel for the respondent. It was a joint memorandum, but he submits that it was misnamed, as it was not prepared for a case management conference. Counsel for the respondent made comments and these were incorporated into the joint memorandum and returned to the respondent’s Counsel for signature. As Mr Dunning was departing for holiday, Counsel for the respondent offered to file the document, which was accepted.

[6]        I am not satisfied that costs can be claimed by the respondent’s Counsel, particularly when there is a joint memorandum of Counsel and in this case, Counsel for the appellant prepared it. I consider that it is fair in the circumstances that this claim be disallowed.

[7]        The third item related to the filing of the joint memorandum, the costs of which are now claimed by the respondent. On the basis of Mr Dunning’s submissions, it appears that the respondent offered to file the document because Mr Dunning was going to be away at the relevant time and the respondent has now sought costs for filing.

[8]        In light of my reasons above, I do not uphold this claim, as again, this was a joint memorandum, prepared largely by the appellant’s Counsel and the respondent offered to file it. I disallow this claim in the circumstances.

[9]        Stepping back and taking an overview of the costs sought by the respondent, the three days claimed for the written submissions at $7,170 together with a quarter day’s appearance appears to be a fair and reasonable award of costs in the circumstances.

Result

[10]      Item numbers 53, 10 and 11 in the respondent’s schedule of costs are disallowed.

[11]Costs of $7,767.50 are approved as the 2B cost award for the respondent.

Cull J

Solicitors:

Nat Dunning Law, Wellington for the Appellants Rainey Collins, Wellington for the Respondent