MU V BODY CORPORATE 312431 HC AK CIV-2011-494-004768

MU V BODY CORPORATE 312431 HC AK CIV-2011-494-004768

The court awarded the first defendant general costs for the substantive proceedings because, on the material before the court, the first defendant's clarified position was substantially vindicated and the plaintiff should have resolved the matter after counsel's August 2011 correspondence; indemnity and increased costs were refused because the plaintiff had a bona fide substantive claim and there was insufficient material to establish negligent or deliberate conduct; the plaintiff is nonetheless entitled to scale costs on successful interlocutory applications; overall set‑off to apply.

Citation
openlaw-66a66f67_c7d8_4928_8f17_27b4a1f111ac.pdf
Parties
Plaintiff: Danni Mu; First Defendant: Body Corporate 312431; Second Defendant: About Body Corporates Limited; Third Defendant: Sharron Wynn O'Sullivan; Fourth Defendant: Graham Bell
Court
High Court
Jurisdiction
New Zealand
Judgment Date
18 December 2012
Procedural Posture
Civil / Costs Judgment
Outcome
First defendant awarded substantive costs; plaintiff awarded costs for certain successful interlocutory applications; indemnity/increased costs refused; set‑off to be calculated between awards.
Legal Topics
Declarations, Indemnity Costs, Discontinuance, Interlocutory Applications, Unit Titles Act Procedure
Unit Titles Body Corporate Civil Procedure Costs Declarations Indemnity Costs Discontinuance Interlocutory Applications +1 more

Case Brief

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Parties

Danni Mu

Plaintiff

Body Corporate 312431

First Defendant

About Body Corporates Limited

Second Defendant

Sharron Wynn O'Sullivan

Third Defendant

Graham Bell

Fourth Defendant

Procedural Posture

Civil / Costs Judgment

Legal Issues

  1. 1 Which party should bear costs after consent declarations and discontinuance
  2. 2 Whether indemnity or increased costs appropriate under Unit Titles Act ss126-127 or High Court Rules r14.6
  3. 3 Effect of pre‑litigation solicitor correspondence on necessity of proceedings

Ratio Decidendi

The court awarded the first defendant general costs for the substantive proceedings because, on the material before the court, the first defendant's clarified position was substantially vindicated and the plaintiff should have resolved the matter after counsel's August 2011 correspondence; indemnity and increased costs were refused because the plaintiff had a bona fide substantive claim and there was insufficient material to establish negligent or deliberate conduct; the plaintiff is nonetheless entitled to scale costs on successful interlocutory applications; overall set‑off to apply.

Court Disposition

First defendant awarded substantive costs; plaintiff awarded costs for certain successful interlocutory applications; indemnity/increased costs refused; set‑off to be calculated between awards.

Orders

  • First defendant awarded costs for the substantive proceedings of NZD 20581.60 (including disbursements).
  • Plaintiff awarded scale costs on the interlocutory applications in accordance with paragraph [14] of the judgment (items 22 or 23 and items 24‑26 of the Third Schedule) and disbursements as approved by the Registrar.