BODY CORPORATE NO 193791 AND ORS V AUCKLAND CITY COUNCIL AND ORS HC AK CIV-2003-404-2855

BODY CORPORATE NO 193791 AND ORS V AUCKLAND CITY COUNCIL AND ORS HC AK CIV-2003-404-2855

The deed created an immediate obligation payable 14 May 2005 and entitled the plaintiffs to amend proceedings and seek summary judgment on 1 July 2005; the omission of an affidavit was an irregularity but not fatal; defendants' payment on 4 August 2005 rendered further prosecution of summary judgment unnecessary, therefore certain claimed costs predating or unrelated to enforcement after the compromise are disallowed while reasonable costs for preparing supporting affidavits and necessary Chambers attendances up to the payment date are allowable; an earlier $1,000 offer did not bind the court because the award (with disbursements) exceeds that amount.

Citation
openlaw-9551154a_8801_4d5d_b2e2_80346dd10953.pdf
Parties
First Plaintiff: Body Corporate No 193791; Second Plaintiff: David Alexander Lincoln Preston; Second Plaintiff: Elizabeth Ada Preston; Second Plaintiffs (unnamed): Other Second Plaintiffs; First Defendant: Auckland City Council; Second Defendant: Davis Design Limited; Third Defendant: Burton Residential Limited; Fourth Defendant: James Hardie New Zealand Limited; Fifth Defendant: Paul Wayne Burton
Court
High Court
Jurisdiction
New Zealand
Judgment Date
13 September 2005
Procedural Posture
Civil Enforcement of Settlement / Summary Judgment / Costs Fixing After Summary Judgment Application and Settlement Repayment
Outcome
Costs partly awarded to plaintiffs and partly disallowed; specific challenged items disallowed; the court declined to act on the defendants' $1,000 costs offer and the order stands.
Legal Topics
Summary Judgment, Accord and Satisfaction, Enforcement of Compromise, Costs Assessment, Interest on Judgment
Civil Procedure Contract Law Costs Summary Judgment Accord and Satisfaction Enforcement of Compromise Costs Assessment Interest on Judgment

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Parties

Body Corporate No 193791

First Plaintiff

David Alexander Lincoln Preston

Second Plaintiff

Elizabeth Ada Preston

Second Plaintiff

Other Second Plaintiffs

Second Plaintiffs (unnamed)

Auckland City Council

First Defendant

Davis Design Limited

Second Defendant

Burton Residential Limited

Third Defendant

James Hardie New Zealand Limited

Fourth Defendant

Paul Wayne Burton

Fifth Defendant

Procedural Posture

Civil Enforcement of Settlement / Summary Judgment / Costs Fixing After Summary Judgment Application and Settlement Repayment

Legal Issues

  1. 1 Whether the plaintiffs were entitled to amend proceedings and pursue summary judgment to enforce the settlement debt
  2. 2 Whether procedural irregularity (failure to file affidavit) invalidated the summary judgment application
  3. 3 Whether any claimed costs pre-dating the deed of compromise are recoverable

Ratio Decidendi

The deed created an immediate obligation payable 14 May 2005 and entitled the plaintiffs to amend proceedings and seek summary judgment on 1 July 2005; the omission of an affidavit was an irregularity but not fatal; defendants' payment on 4 August 2005 rendered further prosecution of summary judgment unnecessary, therefore certain claimed costs predating or unrelated to enforcement after the compromise are disallowed while reasonable costs for preparing supporting affidavits and necessary Chambers attendances up to the payment date are allowable; an earlier $1,000 offer did not bind the court because the award (with disbursements) exceeds that amount.

Court Disposition

Costs partly awarded to plaintiffs and partly disallowed; specific challenged items disallowed; the court declined to act on the defendants' $1,000 costs offer and the order stands.

Orders

  • Disallowance of claimed commencement costs ($3,900) as ante-date costs included within the deed of compromise
  • Allowance of an amount for preparation of summary judgment supporting affidavits (claim of $780 accepted)