YEE GOOD FORTUNE INVESTMENTS LTD v BODY CORPORATE 392619 [2017] NZHC 1221

YEE GOOD FORTUNE INVESTMENTS LTD v BODY CORPORATE 392619 [2017] NZHC 1221 [7 June 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2016-404-2242[2017] NZHC 1221UNDER section 119 of the Residential TenanciesAct 1986 and Part 20 of the High CourtRulesBETWEEN YEE GOOD FORTUNE INVESTMENTSLIMITEDAppellantAND BODY CORPORATE NO 392619RespondentHearing: On the papersAppearances: N Dunning for the AppellantS Powrie for the RespondentJudgment: 7 June 2017JUDGMENT OF GORDON J[As to costs]This judgment was delivered by meon 7 June 2017 at 2.30 pm, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors: Nat Dunning Law, WellingtonGrove Darlow & Partners, Auckland[1] On 12 April 2017 I issued a judgment allowing the appeal brought by Yee Good Fortune Investments Ltd (YGFI). There were six questions of law on appeal and YGFI was successful in relation to three of those questions. In light of this mixed success, I suggested that this might be an appropriate case in which to let costs lie as they fall. However, I requested the parties to consult with each other and, if possible, file a joint memorandum. In the event that they were unable to come to agreement regarding costs, I directed that separate memoranda be filed.[2] YGFI has now filed submissions seeking costs against the Body Corporate on two grounds. The first ground is that despite its mixed success in relation to the various questions of law on appeal, YGFI ultimately achieved its desired outcome, namely the overturning of the District Court decision on appeal. YGFI therefore seeks, as a minimum, an award of costs on a 2B basis for both the District Court and High Court proceedings.[3] YGFI goes further and seeks increased or indemnity costs under r 14.6(3)(d) based on the conduct of the Body Corporate outside of the present proceeding. Counsel for YGFI, Mr Dunning, informs the Court that on 10 October 2016, after YGFI had filed its appeal in the High Court, the Body Corporate filed proceedings in the High Court at Wellington seeking to liquidate YGFI for non-payment of the contested levies (plus interest and administrative charges). Mr Dunning submits that the filing of liquidation proceedings at that time was inappropriate or improper, unreasonable and the cause of unnecessary and unjustified expense to YGFI. In Mr Dunning's view, this conduct provides an appropriate basis for making an order for increased or indemnity costs against the Body Corporate in the present proceeding.[4] The Body Corporate opposes YGFI's submissions regarding costs, but doesnot seek an award of costs against YGFI.[5] Having considered the submissions filed by both parties regarding costs, I am satisfied that this is an appropriate case in which to make an order for costs in favourof YGFI. I accept Mr Dunning's submission that while YGFI may not havesucceeded on every question of law, the appeal was ultimately successful. But forthe appeal, YGFI would have been required to pay a significant sum of money in levies, interest and administrative charges on the basis of a District Court decision that was flawed in its application of the relevant law. However, I decline to make an order for costs against the Body Corporate in relation to the District Court proceeding. Mr Dunning did not provide any authority to support his application for an order of that nature.[6] I do not consider that this is an appropriate case in which to make an orderfor increased or indemnity costs. There may be force in Mr Dunning's submissionthat the filing of a liquidation proceeding by the Body Corporate pending the present appeal was improper and/or unreasonable. In my view, however, any improper or unreasonable conduct can be appropriately dealt with by way of a costs award in the liquidation proceeding, rather than the present case.[7] YGFI is entitled to costs on a 2B basis in the sum of $10,927.00 and disbursements of $540.00.___________________________________Gordon J