BODY CORPORATE 392619 v YEE GOOD FORTUNE INVESTMENTS LIMITED [2018] NZHC 657_x000b_

BODY CORPORATE 392619 v YEE GOOD FORTUNE INVESTMENTS LIMITED [2018] NZHC 657[12 April 2018]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-Ā-TARA ROHECIV-2016-485-823[2018] NZHC 657BETWEEN BODY CORPORATE 392619PlaintiffAND YEE GOOD FORTUNE INVESTMENTSLIMITEDDefendantCounsel: J Samuel for the plaintiffN Dunning for defendantJudgment: 12 April 2018COSTS JUDGMENT OF ASSOCIATE JUDGE JOHNSTON[On the papers][1] In a judgment dated 21 February 2018 Associate Judge Smith dismissed theplaintiff's claim for an order putting the defendant into liquidation.[2] At the conclusion of a lengthy judgment, his Honour said:[96] Counsel may file memoranda on costs if they cannot agree. Anymemorandum for [the defendant] is to be filed and served within20 working days. Any reply memorandum by [the plaintiff] is to befiled within 15 working days of its receipt of [the defendant's]memorandum.[3] The parties have been unable to agree on costs. The defendant seeks costs.Mr Dunning has filed and served a memorandum dated 8 March 2018 setting out thebasis for that claim. Mr Samuel has filed and served a memorandum in responsewhich, although undated, was received by the Registry on 27 March 2018.[4] Mr Dunning's starting point is that costs follow the event so that the successfuldefendant is entitled to its costs. On its behalf he has calculated costs on a 2B basiswhich total $8,474, together with disbursements which total $1,167.50.[5] However, he seeks a 50 per cent uplift on the costs component pursuant tor 14.6(3)(b)(ii) and (iii), effectively on the basis that the plaintiff took unnecessary andunmeritorious steps or pursued unnecessary and unmeritorious arguments, therebyincreasing the costs of the proceeding. In this regard, he refers me to the Court ofAppeal's decision in Bradbury v Wespac Banking Corporation [2009] 3 NZLR 400 asan example of a case in which increased costs were awarded on that basis, and for theprinciples involved.[6] The balance of Mr Dunning's memorandum sets out the respects in which hesubmits that the plaintiff's actions increased the costs of the litigation. I note that someof these examples are based on factual assertions in respect of which there is noevidence. I do not propose to canvass all of them. In the context of a costs decisionit is sufficient for me to say that even if they could be substantiated, I do not view themas involving anything more than the actions of a committed and resolute litigant.[7] In contrast the actions of the plaintiffs in the Bradbury case were of an entirelydifferent character.[8] In his memorandum in response, Mr Samuel does not challenge Mr Dunning'scalculations of the costs and disbursements as set out above. He submits, in what isalmost a perfect mirror image of Mr Dunning's submissions, that it was the actions ofthe defendant which involved unnecessary and unmeritorious steps and arguments,and, on that basis, contends that the cost of the proceeding should be left to lie wherethey have fallen.[9] I am equally unpersuaded by both arguments.[10] I was not the judge who dealt with the substantive case (though I have sincedealt with another aspect of it). However, my perception is that it is an example ofhard fought litigation in which both parties advanced their cases vigorously, possiblyon occasions over-vigorously, but I have difficulty seeing examples of either partytaking unnecessary or unmeritorious steps or making unnecessary or unmeritoriousarguments.[11] In my judgement, the correct approach in this case is to start — as Mr Dunningstarted — with the proposition that costs should follow the event, which would meanthat the defendant as the successful party in the litigation is prima facie entitled to anaward of costs. As to the level of those costs, my view is that they should be awardedon a 2B scale.[12] That is the order that I propose to make.[13] The plaintiff is ordered to pay to the defendant, the sum of $8474 by way ofcosts together with the sum of $1,167.50 by way of disbursements.Associate Judge JohnstonSolicitors:Jennifer G Connell & Associates, Auckland for the plaintiffNat Dunning Law, Wellington for the defendant