HOLDAWAY v SHAY SOLUTIONS LIMITED [2014] NZHC 1319

HOLDAWAY v SHAY SOLUTIONS LIMITED [2014] NZHC 1319 [12 June 2014]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2013-404-4035[2014] NZHC 1319UNDER the Unit Titles Act 2010IN THE MATTER of an application under s 141 for anappointment of a Body CorporateAdministratorBETWEEN RABBUL NISHA HOLDAWAY(commonly known as Neshia Holdaway)PlaintiffAND SHAY SOLUTIONS LIMITEDFirst DefendantSHAY STRATA SOLUTIONS LIMITEDSecond DefendantHearing: (on the papers)Appearances: Plaintiff in personJ Armstrong for the DefendantsJudgment: 12 June 2014JUDGMENT OF WOODHOUSE J (Costs)This judgment was delivered by me on 12 June 2014 at 3:30 p.m. pursuant to r 11.5 of the High Court Rules 1985.Registrar/Deputy RegistrarSolicitors / Counsel: Ms N R Holdaway, Norwest City Law Ltd, Solicitors, Waimauku, Auckland Mr J Armstrong, Armstrong Murray, Solicitors, Takapuna, Auckland[1] In a judgment striking out the proceeding there was an order for costs in favour of the defendants, without the amount being quantified.1 The parties havebeen unable to agree on costs and memoranda have been filed.[2] The plaintiff submitted that there should be no costs. The only argument advanced that might require review of the existing order is a submission that the parties had agreed at an earlier hearing, before Priestley J, that costs would lie where they fall.2 The plaintiff submitted that this was confirmed in a memorandum for thedefendant of 10 December 2013. Priestley J's minute does not record an agreement,or a Court direction, to that effect. The subsequent memorandum for the defendantsrecorded that the defendants would not seek costs if the proceedings were struck outat the hearing on 10 December 2013. In the context of this entire proceeding, andthe plaintiff's approach to it, what the defendants said in the 10 Decembermemorandum can be seen as an effective offer of compromise to the plaintiff toagree to withdraw a proceeding which had little merit. The defendants were seekingto bring their involvement to an end without incurring further cost. This did nothappen. The plaintiff's further conduct of the proceeding exacerbated matters.[3] There is no proper basis for the plaintiff's effective challenge to the orderalready made awarding costs to the defendants, subject only to quantification.[4] The defendants submitted that there are grounds for indemnity or increasedcosts, but said that in the end they sought costs on a 2B basis to avoid furtherextensive argument. Given the plaintiff's challenge to an existing costs order, andher response to the defendants reasonable approach on the quantification of costs, itis relevant to record that I am satisfied the defendants would be entitled to increasedcosts for the reasons recorded in the defendants' memorandum. These are that theplaintiff sued the wrong parties; she failed or refused to amend her proceeding ordiscontinue it in spite of repeated urging from the Court; and she did not heed theadvice of Kós J to instruct independent counsel to advise her in the proceeding.1 Holdaway v Shay Solutions Ltd [2014] NZHC 468.2 Minute of Priestley J of 14 October 2013 at [13].[5] The defendants seek a total of $7,274 for costs and disbursements. This isfully itemised. The claim is in accordance with the schedules to the Rules.[6] There is an order that the plaintiff pay the defendants' costs anddisbursements in a sum of $7,274._______________________________Woodhouse J