BOYKO V BODY CORPORATE NO 205963 & ORS CA CA679/2010
Because the respondents' steps in the Court of Appeal after the appellant sought an extension of time were reasonable, the appellant's grounds for opposing costs failed (including inability to pay and prior allegations), and the claimed costs were correctly calculated under the Rules, the appellant was ordered to...
Source-derived case information.
- Citation
- openlaw-6cc36894_223d_409d_9dd8_1d2ee7001f6d.pdf
- Parties
- Appellant: Larisa Vasilievna Boyko; Respondent: Body Corporate No 205963 & Ors
- Court
- Court of Appeal
- Jurisdiction
- New Zealand
- Judgment Date
- 9 December 2010
- Procedural Posture
- Civil Appeal / Costs Application After Abandonment of Appeal and Application for Extension of Time
- Outcome
- Costs awarded to first respondent; appeal application abandoned
- Legal Topics
- Extension of Time, Costs on Abandonment, Conduct of Litigation, Capacity to Pay, Body Corporate Disputes
Source-derived case record
Summary, issues, holding and outcome
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Parties
Larisa Vasilievna Boyko
Appellant
Body Corporate No 205963 & Ors
Respondent
Procedural Posture
Civil Appeal / Costs Application After Abandonment of Appeal and Application for Extension of Time
Legal Issues
- 1 Whether costs should be awarded after the appellant abandoned an application for extension of time to appeal
- 2 Whether the respondents' steps in the Court of Appeal were reasonable and justified costs
- 3 Whether pre‑litigation or underlying conduct of the parties bears on the costs decision in this Court
Ratio Decidendi
Because the respondents' steps in the Court of Appeal after the appellant sought an extension of time were reasonable, the appellant's grounds for opposing costs failed (including inability to pay and prior allegations), and the claimed costs were correctly calculated under the Rules, the appellant was ordered to pay the respondents' costs of $5,689.06.
Court Disposition
Costs awarded to first respondent; appeal application abandoned
Orders
- Appellant must pay the first respondent costs of $5,689.06.
- Costs comprised $4,700 in legal costs and $989.06 in disbursements, calculated in accordance with the Court of Appeal (Civil) Rules 2005.
Full Case Text
Judgment text and source record
1 paragraphs
BOYKO V BODY CORPORATE NO 205963 & ORS CA CA679/2010 9 December 2010IN THE COURT OF APPEAL OF NEW ZEALAND CA679/2010 [2010] NZCA 604BETWEEN LARISA VASILIEVNA BOYKO Appellant AND BODY CORPORATE NO 205963 & ORS Respondent Court: Chambers, Randerson and Harrison JJ Counsel: Appellant in Person C E Harris for Respondents Judgment: 9 December 2010 at 4 pm (On the Papers)JUDGMENT OF THE COURT The appellant must pay the first respondent costs of $5,689.06.REASONS OF THE COURT(Given by Chambers J) [1] Larisa Boyko applied for an extension of time in which to appeal under r 29A of the Court of Appeal (Civil) Rules 2005. Subsequently she abandoned her application, but not before the respondents had taken a number of steps. [2] The respondents claim costs according to scale. The costs total $4,700, the disbursements $989.06. All sums have been correctly calculated under the Rules. [3] Ms Boyko opposes a costs order on four grounds. First, she asserts that the Body Corporate has acted wrongly over the past six years. She gives details of the Body Corporate's alleged wrongful acts. It is not possible to relitigate the underlying dispute between Ms Boyko and the Body Corporate. The Body Corporate won in the High Court and the appeal from that decision has now beenabandoned. When determining costs, courts are concerned primarily with how parties have conducted themselves in the litigation, not generally with what preceded it.1 All we can be concerned with is the reasonableness of the steps the Body Corporate took in the Court of Appeal after Ms Boyko decided to seek an extension of time for appealing. We are satisfied all those steps were reasonably undertaken. [4] Secondly, Ms Boyko submits that her appeal would have benefited all the property owners in her block of apartments. The fact is, however, that the other 66 property owners did not support her. They lined up with the Body Corporate. As Stevens J observed in the judgment under proposed appeal, 2 she was "the only proprietor who...opposed the Scheme [to repair the damage]". 3[5] Thirdly, she submits she cannot afford to pay costs. A party's capacity to pay is not normally a relevant consideration when a court is determining an appropriate costs order. 4 In any event, Ms Boyko commenced this litigation knowing she probably faced a costs order if she failed, as Stevens J had ordered her to pay costs in the High Court. 5[6] Finally, she submits she has already had to pay the Body Corporate's "lawyer fees" and she annexes to her submission an invoice from the Body Corporate. That invoice covers the High Court costs order. What we are now concerned with is the costs the Body Corporate has incurred since the High Court litigation concluded. She has not so far paid anything towards the Body Corporate for costs on the litigation in this Court. [7] All Ms Boyko's grounds for opposing the costs order fail. Accordingly, we award the Body Corporate costs as claimed.Solicitors: Jackson Russell, Auckland, for Respondents1 Paper Reclaim Ltd v Aotearoa International Ltd [2007] NZSC 26, [2007] 3 NZLR 169 at [40]- [41].2 Body Corporate 205963 v Becker HC Auckland CIV-2009-404-6017, 21 April 2010.3 At [37].4 It is not referred to as a principle applicable to the determination of costs under r 53A. Nor is it listed as a factor relevant to an increase on or reduction from scale costs in rr 53E and 53F.5 At [39].