PRESTIGE MOTORS LIMITED v MY TRUSTEE COMPANY (NIKOLAS AND PETRA) LIMITED [2021] NZHC 1540

PRESTIGE MOTORS LIMITED v MY TRUSTEE COMPANY (NIKOLAS AND PETRA) LIMITED [2021]NZHC 1540 [30 June 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2021-404-000601[2021] NZHC 1540UNDER The Arbitration Act 1996 and The PropertyLaw Act 2007BETWEEN PRESTIGE MOTORS LIMITED, a dulyincorporated company having its registeredoffice at 14 Dryden Place, Mt Wellington,AucklandApplicantAND MY TRUSTEE COMPANY (NIKOLASAND PETRA) LIMITED, a dulyincorporated company having its registeredoffice at 210A Marua Road, Mt Wellington,Auckland, as Trustee of the Nikolas andPetra Trust.RespondentHearing: On the papersAppearances: G Morrison for the ApplicantD Purusram for the RespondentJudgment: 30 June 2021JUDGMENT OF WALKER J[As to costs]This judgment was delivered by me on 30 June 2021 at 12.30 pmPursuant to Rule 11.5 High Court RulesRegistrar/Deputy Registrar[1] In this proceeding, Prestige Motors Limited ("Prestige") sought urgent interimrelief to restrain cancellation of a lease between the parties in respect of premises inMt Wellington and to prevent re-entry in reliance on a notice under the Property LawAct 2007 ("PLA") issued by the respondent, My Trustee Company (Nikolas and Petra)Limited.[2] Prestige asserted that, at the time the PLA notice was issued, the respondenthad unlawfully evicted Prestige from its premises, Prestige was not in possession andthe respondent was already subject to sealed orders in related proceedings whichrequired Prestige's peaceable re-entry to its premises.[3] Prestige repeatedly asked the respondent to withdraw its PLA notice on variousgrounds and proposed submission to arbitration in respect of the underlying dispute.[4] As the respondent did not withdraw the PLA notice, Prestige prepared and filedan urgent application for relief.[5] Following service, the respondent withdrew its PLA notice with immediateeffect and submitted the disputed matters to arbitration.[6] The withdrawal of the PLA notice was precisely the relief that Prestige soughtin its application and what it had proposed for over a month to settle the matters.[7] In those circumstances, Prestige seeks costs on discontinuance. It originallysought 2B scale costs and disbursements totalling $6,627.85. It provided a schedulesetting out each of the steps taken, the time allocation and recovery on a 2B basis withits memorandum as to costs.[8] The respondent submitted that costs should lie where they fall because theunderlying substantive dispute had yet to be aired. It contests Prestige's account ofevents, in particular as to the validity of the PLA and effect of s 267 of the PropertyLaw Act 2007. It maintains that Prestige committed breaches outlined in the PLAnotice and the Court has not had the opportunity to consider the grounds of oppositionsubstantively.[9] Prestige is entitled to costs. It has been put to the time and trouble of preparingand filing its application to prohibit the respondent from enforcing the PLA notice.After filing and service, the respondent withdrew the PLA notice, in essence givingPrestige the relief it had sought from the Court. The underlying allegations in thewithdrawn PLA notice are not relevant to the cost inquiry.[10] In a reply memorandum, Prestige added to its costs claim to assert anentitlement to 'costs on costs' to reflect the needlessness of a costs determination. Itnow seeks a further $956 for preparation of the costs memorandum.[11] An award of costs on costs is not standard but the Court clearly has a discretionto make such award.1 In circumstances where Prestige only sought "scale" costs andobtained the very relief it sought in the proceeding, there are principled grounds forrecovery of the cost of preparation of memoranda which ought to have beenunnecessary. Parties ought to be disincentivised from forcing their opponent to incurfurther costs and the Court to determine what ought to be obvious entitlements to costs.However, an issue arises here. The original costs memorandum did not seek to recoverfor preparation for the memorandum and this only became a live issue in a replymemorandum to which the respondent is not strictly speaking entitled to respond.[12] While I agree that Prestige has been put to needless time and cost, in thosecircumstances, I make a costs order of $6,627.85 in favour of Prestige, being theamount originally claimed.............................................................Walker J1 Hojsgaard v Chief Executive of Land Information New Zealand [2019] 2 NZLR 864, [2019]NZCA 84 at [130].