York Trustees Limited v Body Corporate 166208

[2018] NZHC 227

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2017-404-1805 [2018] NZHC 227

IN THE MATTER

Of Unit Titles Act 2010

BETWEEN

YORK TRUSTEES LIMITED Applicant

AND

BODY CORPORATE 166208

Respondent

Hearing:	(on the papers)
Appearances:	T Bates for Applicant D J Barr and J S Learner for Respondent
Judgment:	23 February 2018

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 23 February 2018 at 2.15pm

Pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

So licito r s :

Legal Vision, Auckland

Simpson Grierson, Auckland

YORK TRUSTEES LIMITED v BODY CORPORATE 166208 [2018] NZHC 227 [23 February 2018]

[1]      By judgment dated 29 November 2017, I dismissed an application by York Trustees Ltd (York) for leave to appeal out of time against a decision of the District Court upholding a decision of the Tenancy Tribunal that York is obliged to pay water and gas charges invoiced by the respondent, Body Corporate 166208 (Body Corporate).1    I awarded reasonable costs to the Body Corporate in accordance with s 124(2) of the Unit Titles Act 2010.

[2]     I have received memoranda from counsel for the parties that there has disagreement as to what are “reasonable” costs.   The respondent seeks costs of

$27,488.28 (including GST), being its actual and reasonable solicitor/client costs (indemnity costs).  Without challenging any specific item in the Body Corporate’s itemization of its costs, York challenges the costs as unreasonable and excessive. York says the Body Corporate should be awarded scale costs on a Category 2B basis.

[3]      In Gilbert v Body Corporate 162791, the Supreme Court upheld a decision of the Court of Appeal that the reference to “reasonable costs incurred in collecting [a] levy” in s 124(2) means that actual costs of collection, providing they are reasonable, are recoverable and that this encompasses reasonable solicitor and own client costs as objectively assessed.2    The Supreme Court said that while s 124 is “probably not controlling”, it is of considerable relevance because it indicates that those who default in the payment of levies are responsible for the costs of collection.   The Court emphasised that the alternative would be to impose some or all of those costs on the other unit owners.3

[4]     These considerations are directly applicable to an assessment of the reasonableness of the costs claimed by the Body Corporate in this case.

[5]      I do not accept the contentions from counsel for York that the costs claimed by the Body Corporate are excessive and that the arguments before me had already been prepared for in the context of the hearings before the Tenancy Tribunal and the District

Court. I accept the submission by counsel for the Body Corporate that York’s conduct

1      York Trustees Ltd v Body Corporate 166208 [2017] NZHC 2942.

2      Gilbert v Body Corporate 162791 [2016] NZSC 61, [2018] 1 NZLR 1 at [56]; Body Corporate

162791 v Gilbert [2015] NZCA 185, [2015] 3 NZLR 601 at [78].

3 At [57].

of the litigation meant that it was only at the High Court appeal that the issues were fully articulated and that this required the Body Corporate to address them afresh. When considered in that light, I do not consider the costs incurred unreasonable.

[6]      Accordingly, I award the respondent their reasonable costs of $27,488.28 (including GST).  There being no disagreement to disbursements of $366.10 that is

also awarded.

van Bohemen J