|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of New Zealand Decisions |
IN THE HIGH COURT OF NEW ZEALAND
HAMILTON REGISTRY
CIV 2003-419-328
BETWEEN HERMANUS JOHANNUS GERARDUS
ZONDAG
Plaintiff
AND BERNARDUS CORNELIS HERMANUS
ZONDAG AND MARIA CHRISTINA
ROSA ZONDAG-SNELDERS
Defendants
Appearances: D M O'Neill for the Plaintiff
B Zondag and M Zondag-Snelders
in person
Judgment: 28 September 2007 at 11:00 a.m.
COSTS AND INTEREST JUDGMENT OF NICHOLSON J
This
judgment was delivered by Justice Nicholson on 28 September 2007 at 11:00
a.m. pursuant to r540(4) of the High Court
Rules 1985.
Counsel / Parties:
Mr D O'Neill, Barrister, Hamilton
Mr B Zondag and Ms M Zondag-Snelders, Thames
Instructing Solicitors:
Miller Poulgrain, Solicitors, Thames
ZONDAG V ZONDAG AND ZONDAG-SNELDERS HC HAM CIV 2003-419-328 28 September 2007
TABLE OF CONTENTS
Para No.
Introduction
[1]
Summary judgment costs and disbursements [13]
Caveat costs and disbursements [16]
Pre-trial costs [28]
Trial costs [47]
Disbursements
[110]
Interest [122]
Results
[130]
Introduction
[1] The disputes decided in this proceeding arose from the sale of a block of land
by the
defendants (Berry and Mei) to the plaintiff (Hans) and the design and building
of a driveway and house on that land by the defendants
for the plaintiff.
[2] I outlined the circumstances and claims in [1] - [27] of my judgment of
19 June 2007 (the trial judgment).
[3] The results are in [645] - [654] of the trial judgment.
[4] When I reserved the trial decision the parties requested
that consideration of
costs and interest be deferred and that they have the opportunity to file written
submissions on costs and
interest after they received the trial judgment. This was
appropriate and therefore in the trial judgment I deferred judgment on
costs and
interest until written submissions on them had been filed and considered.
[5] In his second costs and interest memorandum
Berry posed the question of
whether a hearing on costs was required. Mr O'Neill opposed this. Because of my
knowledge of the proceeding
and the detailed and comprehensive nature of the costs
and interest memoranda, I consider that it is appropriate and just to decide
all costs
and interest issues on the basis of the filed documents, the judgments given on
interlocutory applications, the trial evidence
and submissions, the findings in the trial
judgment and the costs and interest memoranda.
[6] The parties filed nine costs and
interest memoranda: five by Mr O'Neill,
dated 29 June 2007, 8 August 2007, 4 September 2007 and two dated 23 July 2007;
one by Hans,
dated 3 September 2007 and three by Berry, dated 9 July 2007, 2
August 2007 and 17 September 2007. Regrettably not only were the
memoranda
prolific but also conflict riddled and confusing. They had many mistakes and
omissions. I directed clarification but
the resulting memoranda only added to the
conflict and confusion.
[7] There was conflict on a myriad of points. Its nature and
extent is reflected in
the plaintiff seeking $389,519.53 for costs and disbursements and the defendants'
seeking up to $163,540.44.
[8] I deal with the costs and disbursements issues relating to the summary
judgment, caveat, other pre-trial and trial aspects
in separate sections of this
judgment.
[9] For the reasons given I decide most of the pre-trial and all of the trial costs
and disbursements on a proportion of trial success
basis.
[10] For the reasons given I decide costs on a Rules 2B basis, with the exception
of 2C for discovery and inspection.
[11] I have applied the changes to the Rules which came into effect on 1 January
2004, the most significant being the increase
of the Schedule 2 daily rate for
category 2 proceedings from $1,300 to $1,450 per day.
[12] I have taken into account that the
defendants represented themselves since
late September 2004 and thereafter were not entitled to recover costs.
Summary judgment
costs and disbursements
[13] The summary judgment application was heard by Master Faire (as he then
was) on 9 April 2003. After
considering the affidavit evidence and submissions
Master Faire said that he was left in doubt about whether there was specific
agreement
concerning the transfer of the 1,676 m2 and if there was, whether because
of the absence of documentation, it was enforceable. He
found that the summary
judgment application failed. He reserved costs.
[14] If a plaintiff persists with a summary judgment application
after it becomes
clear that there is a bona fide question of fact or law which can only be determined
by trial, the Court may order
that the plaintiff pay costs to the defendant for the steps
taken from that time until the summary judgment application is dismissed:
NZI Bank
Ltd v Philpott [1990] 2 NZLR 403; Apostolatos v NZ Insurance Co Ltd (HC WN
CP118/90, 1 June 1990, Master Williams QC).
[15] In my view when the plaintiff received the notice of opposition and affidavit
in support he should have realised that
there was such dispute about fact and law that
it was extremely unlikely that summary judgment would be given and that the
disputed
issues would need to be decided by a substantive hearing. I consider that it
is just and appropriate that each party should bear
its own costs and disbursements
for preparation and filing of the application and opposition and supporting affidavits
and that the
plaintiff should pay costs to the defendants for arguing the defended
application. I therefore award summary judgment costs and disbursements
as stated
in Schedules 2 and 3 of this judgment.
Caveat costs and disbursements
[16] On 3 September 2003 the plaintiff lodged
a caveat against Lot 7. The
defendants applied to the Registrar of Land for the caveat to lapse. On 2 June 2005
the plaintiff
applied to have the caveat sustained. The defendants filed notice of
opposition. On 15 June 2005 Priestley J made an interim sustaining
order and ruled
that the application was to be determined in conjunction with the pending trial.
[17] Mr O'Neill sought the
following costs and disbursements for the caveat
matter:
Category 2B - $1,450.00 per day
Category 1 Originating
application
Taking instructions 3.0
Mention (8 June 2005) .2
4 Sealing order .2
6 Obtaining order .3
3.7 x $1,450.00 = $5,365.00
Disbursements: Filing fee $1,100.00
40.00
Sealing fee $
[18] Berry submitted that it is inappropriate
that a costs determination in respect
of the caveat application is made without hearing argument as to the legality of the
caveat
itself and the necessity of it being sustained in the circumstances that led to
the application for removal.
[19] Berry submitted
that the defendants only applied to have the caveat removed
after they had given the plaintiff the opportunity to sustain the caveat
while they
undertook slight change to a boundary, some 400 metres away from the area over
which the plaintiff alleged he had an equitable
interest. He said this opportunity was
evidenced in correspondence with the plaintiff's solicitor. Berry said that the
defendants
urgently needed to adjust the boundary between Lots 7 and 8 because of a
potential sale of Lot 8, and they had no other course open
to them than to seek
removal of the caveat. Berry submitted that the plaintiff's application to sustain the
caveat was unnecessary
and the result of his own refusal to reasonably deal with the
matter. The end result of the situation for the defendants was that
they could not sell
Lot 8 at the time and that therefore the plaintiff in effect held a caveat over two titles.
Berry submitted that
the plaintiff's refusal to consent to the boundary adjustment led
to damage for the defendants, this being an aspect that has not
been dealt with.
[20] In addition, Berry submitted that the outcome of the trial, namely the transfer
of 327 m2, has always been
available to the plaintiff and was in no need of protection
by way of a caveat. He submitted that the caveat was based on an alleged
equitable
interest of 1,670 m2 and therefore was illegal and had not been upheld in any way.
Berry submitted that the Court had not
substantively dealt with the caveat matter and
should therefore not deal with any caveat cost issue. That in any event an award of
costs in respect of the plaintiff's application to sustain the caveat was inappropriate
and that the Court should not award costs
on the caveat application.
[21] Mr O'Neill took issue with these submissions pointing to the trial judgment
finding that the
defendants were to transfer 337 m2 of Lot 7 to the plaintiff and that
this confirmed that the plaintiff had an equitable interest
in Lot 7 which justified the
filing and sustaining of the caveat.
[22] In response to Berry's submission that the defendants
gave the plaintiff an
opportunity to sustain the caveat whilst they undertook a slight boundary change, Mr
O'Neill referred to a
statement in a letter by the plaintiff's solicitor to Berry dated 30
June 2005 that:
To our considerable surprise, in light
of your recent unsuccessful action in
challenging our client's caveat in respect of which Justice Priestly [sic] has
ruled, that the matter be determined in conjunction with the pending trial,
you still expect our client to execute
a consent instrument in relation to the
caveat. In any event, you have not shown us what boundaries you want
changed.
You have sent us two plans now. On neither of them is it clear
which boundary is to be moved. We suggest you undertake the
exercise of
showing us and we will consider it.
[23] Mr O'Neill submitted there was also significant correspondence
produced in
the caveat affidavits which showed that the plaintiff was not unreasonable.
[24] The caveat dispute was referred
to in evidence at the trial but there were not
detailed submissions on it. This did not surprise me as the defendants pleaded that
there was agreement at some point that 327 m2 of Lot 7 would be transferred to Lot 6
for the parking area and that they remained
willing, able, and prepared to do that on
such terms, including price, as the Court might consider appropriate and just. Also,
that
they were willing, able, and prepared to transfer 10 m2 for the septic tank from
Lot 7.
I found there was an enforceable
contract for the transfer of the 327 m2 from
[25]
Lot 7 to Lot 6 and that it would be an appropriate case to order specific performance
of that obligation. Therefore the plaintiff had an equitable interest in Lot 7 which
justified the lodgement of the caveat. The defendants'
pleaded offer to transfer 327
m2 was not unconditional. In their pleadings and at the trial they sought orders
requiring the plaintiff
to pay for the land. I found that the plaintiff did not have to
pay for the land.
[26] I ordered that the plaintiff withdraw
the caveat forthwith after registration of
the transfer of the 337 m2 and variation of an easement in relation to the southern
part of the driveway.
[27] After considering
the affidavits filed with relation to the application to sustain
the caveat and the trial evidence and findings I am satisfied that
the plaintiff was
legally justified and acted reasonably in lodging and sustaining the caveat. It is
therefore appropriate that he
receive costs on a 2B basis for successfully sustaining
the caveat. As shown in Schedules 2 and 3 of this judgment I order that the
defendants pay the plaintiff the claimed caveat costs of $5,365 plus caveat
disbursements of $1,140.
Pre-trial costs
[28] As
with the other costs and interest issues, I decide the pre-trial costs and
disbursements issues on the basis of the filed documents,
the judgments given on
interlocutory applications, the trial evidence and submissions, the findings in the trial
judgment, and the
costs and interest memoranda. The results are set out in Schedules
2 and 3 of this judgment. All are on the basis of the 2B category/band
except for
those relating to discovery and inspection of documents for which I order 2C
category/band to allow for the exceptional
amount of time which the considerable
number of documents required. Because of this and the substantial trial award for
preparation
I do not in addition allow any part of Mr Reeve's fees either as costs or
disbursements.
[29] In a costs judgment of 30 January
2004 Master Faire ordered that the
defendants pay costs of $650 together with disbursements for the plaintiff's
successful application
to enforce a timetable order. These were paid. In that
judgment Master Faire said that costs relating to amendments were
matters which
should be raised when the costs associated with the proceeding were finally resolved
and he did not consider them.
In the circumstances I decide that each party should
bear their own costs of amending their statement of claim and statement of defence
and counterclaim.
[30] In a minute of 16 June 2004 Gendall J granted the defendants' application for
adjournment of the trial
fixture to start 16 August 2004 and allocated a new trial
fixture to start 15 November 2004. He reserved costs. The basis of the
adjournment
was that the fixture had been allocated without the defendants' counsel being aware
of the proposed timing and that
Berry had a university commitment then.
[31] There is dispute between Hans and Berry in their latest costs memoranda
about the
need for the defendants to file the application for adjournment.
[32] Hans said:
During the conference the defendant
suddenly argues the fixture has to be
vacated as a result of "the date being allocated without counsel being aware
of the date".
My counsel accepted this. This technicality was only revealed at the actual
hearing and made our opposition
and in fact the whole entire hearing useless.
[33] Berry responded:
The plaintiff misrepresents what occurred. The defendants
were informed
that a fixture had been set, without the registrar having conferred with the
defendants' counsel (Mr
Gorringe). When asked informally, the plaintiff
was not prepared to consent to an adjournment, hence an application was
made, which was opposed by the plaintiff.
During the hearing His Honour inquired whether the defendants' counsel
had been consulted about the fixture dates. Obviously this played a part in
the decision to grant adjournment. It must
be noted that the plaintiff was not
present at the hearing, but the defendants were. It is unclear where the
plaintiff
has obtained his information what occurred from, and how he can
make such pertinent statements.
[34] To resolve the dispute
would require a special hearing at which Hans, Mr
O'Neill, Berry, Mei, and Mr Gorringe would probably need to give evidence.
Because
of the amount in issue, the delay and the cost in resources and money, I
consider that a special hearing is not warranted and I resolve the matter by ordering
that all costs
and disbursements in respect of the adjournment lie where they fall.
[35] On 1 September 2004 Cooper J heard defended interlocutory
applications by
the plaintiff and the defendants. In his judgment of 3 September 2004 Cooper J
found that each party had partly succeeded
and partly failed in their respective
applications. He reserved all questions of costs on the applications to be dealt with
by the
trial Judge at the conclusion of the hearing.
[36] The plaintiff sought three things. First, the production of the originals
of
certain documents discovered by the defendants of which copies only had been
supplied. Second, better discovery in respect of
documents not discovered but
supposed to exist as a result of the inspection of other documents. Thirdly, better
particulars in respect
of the elements of the defendants' January 2003 statement of
account. After hearing submissions Cooper J gave an indication to counsel
of his
view on the first and second points. They then conferred and submitted a joint
memorandum in which only three items remained
in dispute. Cooper J ruled in
favour of the plaintiff on each of those three items. On the third aspect of the
plaintiff's application,
being particulars in respect of the January 2003 account,
Cooper J ruled in favour of the defendants.
[37] There were four parts
to the defendants' application. First, further and better
discovery was sought in respect of documents in a number of categories.
Mr
Gorringe advised that the plaintiff's affidavit in opposition to the defendants'
application had covered the matters
in issue which made it unnecessary to take this
part of the application further, with the exception of documents relating to Double
Sun. Cooper J ruled that the plaintiff need not discover further documents relating to
Double Sun.
[38] Second, the defendants
sought orders that the plaintiff file and serve a more
explicit statement of the particulars of its claim. Mr Gorringe accepted that
the
information had been given in an affidavit exhibit. Cooper J ordered that that
information be incorporated in an amended statement
of claim.
[39] Third, that the plaintiff provide a copy of its expert quantity surveyor's brief
of evidence earlier than timetabled.
Cooper J ordered this be done 10 days in
advance of the timetabled date.
[40] Fourth, the defendants sought orders giving access
to the plaintiff's property
for inspection by the defendants' quantity surveyor with Berry also present. The real
contention was
whether Berry should be allowed to accompany the quantity
surveyor. Cooper J ruled that he could provided that he was at all
times
accompanied by his solicitor.
[41] Having regard to the nature and results of the issues heard and decided by
Cooper J,
I consider that overall the plaintiff succeeded to a significantly greater
extent than the defendants. However, I do not have
sufficient knowledge or
information about the hearing to be able to decide costs on a proportionality of
success basis. I therefore
fix the costs which the defendants should pay to the
plaintiff at a general figure of $1,500, being slightly more than half a 2B
sum for
preparation and a one day hearing, without allowance for preparation and filing of
the application. In addition, I order
the defendants pay the $600 filing fee
disbursement to the plaintiff.
[42] When the defendants applied for appointment of an
expert, adjournment,
further discovery and leave for interrogatories, and appeared before MacKenzie J on
7 October 2004 in support
of these applications, they were no longer represented by
counsel. From the knowledge which I gained at the trial I consider that
the
defendants' application for appointment of an expert was an attempt by Berry to
avoid resolution by the Court on the basis of
the contractual arrangements made
between the parties and instead have it determined by a quantity surveyor, architect
or engineer on a materials and labour related
assessment. By declining to appoint an
expert and ordering that there be a conference of the quantity surveyors instructed by
the
parties, MacKenzie J in effect declined the defendants' application and resolution
by expert did not go down the path which Berry
wanted. MacKenzie J considered
that the proceeding was not ready for trial and that the estimated four day trial
allowance was inadequate.
He vacated the November fixture. He was not prepared
to order any interrogatories or further discovery at that stage. He reserved
costs and
adjourned the proceeding for callover on 8 December 2004. I consider that it is
appropriate and just that the defendants
pay costs of $1,450 to the plaintiff, this
reflecting a 2B calculation for half day preparation and half day hearing.
[43] At
the callover on 8 December 2004 Venning J allocated a ten day trial
fixture starting 18 July 2005 and made directions about the expert
conference,
discovery and timetable for exchange of witness statements. He referred the file to
the executive Judge at Auckland to
assign a trial Judge. He reserved costs on the
callover appearance. I order that the defendants pay callover costs to the plaintiff
on
the 2B basis stated in the Schedule 2 of this judgment. As the defendants were not
represented they were not eligible for costs.
[44] I was assigned as the trial Judge. On 23 March 2005 I held a conference to
deal with outstanding matters and having heard
submissions from Mr O'Neill and
Berry I made directions about the expert conference, the bundle of documents,
statements of evidence
and timetable orders for applications to take evidence before
trial. I order that costs be paid for this conference as if it were
a case management
conference and as stated in Schedule 2 of this judgment.
[45] On 16 May 2005 I heard a contested application
by the plaintiff for leave for
the evidence of Mrs Van Vurt to be taken on oath before she left to go overseas. I
declined the defendants'
application for the hearing to be in Auckland. I made
orders about the joint statement of the expert witnesses, taking of evidence
by video
link, the common bundle and amendment of pleadings. I reserved costs. I award
costs for this hearing to the plaintiff upon
the basis of its predominant issue, namely
the contested application for the taking of the evidence of Mrs Van Vurt and as
stated
in Schedule 2 items 35, 36 and 37 of this judgment.
[46] I allow half a day for preparation for hearing of the evidence of Mrs
Van Vurt
and half a day for the taking of her evidence, both on a 2B basis.
Trial costs
Submissions
[47] Mr O'Neill submitted
that the plaintiff was "largely successful", and that
Berry had lengthened the trial by much pointless evidence and cross-examination.
He conceded, however, that given the nature and tenor of the dispute it was probably
appropriate that "everything be put on the table".
[48] Mr O'Neill submitted that:
The defendants' defence of the substantive claim has been marked by the
fact
that he engaged in numerous interlocutory skirmishes and made a
variety of informal applications to the Court. Given that
he was
unrepresented and therefore not paying legal fees and also given that the
Plaintiff was represented and was
incurring significant fees throughout this
period, it is appropriate that, having regard to that and also having in the
main regard to the complexity of the matter, that this matter attract an award
of costs based on a Category 3 Band
C basis.
[49] Mr O'Neill sought allowance for Mr Reeves as second counsel. He said that
whilst Mr Reeves was not a solicitor,
he was undertaking the job of a junior in Court
and his assistance was invaluable, particularly given the size of the trial.
[50]
Mr O'Neill submitted that the plaintiff had been disadvantaged by
Mr Bayley's statement of evidence being provided only a few days before the start of
the trial and
Berry's statement of evidence arriving after the plaintiff had closed his
case.
[51] Mr O'Neill concluded his first costs and
interest memorandum by saying:
However, as a matter of general observation, it is submitted that the
defendants
have purposely made this dispute as difficult and complex as they
possibly could to the expense of the plaintiff. As a consequence
of that
behaviour, it is submitted that the higher award of costs under Rule 48C, ie
3C would be appropriate, however,
of course if Your Honour was of the
view that a higher award again would be appropriate, then that would be
acceptable
to the plaintiff.
[52] Mr O'Neill sought 3C costs totalling $288,200 plus 2B costs for the caveat
matter of $5,365. He initially
sought disbursements of $101,647.96 plus $1,140 on
the caveat matter.
[53] In his first costs and interest memorandum Mr O'Neill
did not disclose what
the actual amount of the plaintiff's costs were, but after this was sought by the
defendants, Mr O'Neill stated
in his second costs memorandum that the amounts
(GST inclusive) spent by the plaintiff to date were:
D M O'Neill
$210,496.87
P Reeves $ 53,430.40
Miller Poulgrain
$ 21,788.73
Total $285,715.60 [sic]
[54]
Mr O'Neill accordingly reduced the 3C costs sought to $285,715.60 [sic].
[55] In his second memorandum Mr O'Neill said that
some disbursements and a
credit had been overlooked and allowing for these he altered the amount for
disbursements claimed to $102,664.53
plus the caveat disbursement of $1,140.
[56] Berry took strong issue with most of Mr O'Neill's costs submissions. He
disagreed
with Mr O'Neill's submission that the plaintiff was "largely successful".
He submitted that the aspect that the trial consisted of
ten pleaded causes of action,
seven in claim and three in counterclaim, all with different relative levels of success
in the outcome
must be weighed when considering costs.
[57] Berry pointed out that the plaintiff had failed on his first cause of action
seeking
transfer of 1,670 m2 and his seventh cause of action seeking interest on
capital. He submitted that the 337 m2, which the plaintiff
had obtained in the second
cause of action, had always been available to him.
[58] Berry submitted that the claim in the plaintiff's
third cause of action in
respect of the southern boundary was non-contentious and that he offered the
solution, which the Court adopted,
of a variation of the easement.
[59] Berry submitted that the plaintiff had only been successful for a relatively
small amount
of the Lot 6 project repayment which he sought in his fourth cause of
action. He submitted that the difference in amount claimed
and awarded showed that
the plaintiff's claim was always grossly overstated. He submitted that by contrast
the defendants did not
fail in establishing the correctness of the value of the
construction and other work but failed in establishing a contractual or
other basis for
their claim.
[60] Berry submitted that the plaintiff had failed on all his claims for faulty work
in the sixth
cause of action, except for the stainless steel aspect.
[61] Berry submitted that the trial could have been substantially shortened
if the
plaintiff had co-operated in, rather than frustrated, the defendants' attempts at
streamlining the trial and resolving issues.
He referred to the failed expert
conference as "perhaps the most poignant example". He submitted that when
stripped
from irrelevant secondary material and when looking behind the multitude
of unnecessary detailed evidence that had to be traversed,
this case was very simple
and has been decided on basic principles. He submitted that it was impossible to
argue that it required highly
experienced or specialised counsel and that the
appropriate category was 2 as was earlier fixed by Master Faire.
[62] Berry
submitted that the defendants had continuously sought to resolve the
issues with the plaintiff by other means, such as mediation,
arbitration, and expert
determination, which the plaintiff turned down or frustrated. He submitted that the
plaintiff deliberately
obstructed the expert conference.
[63] Berry submitted that the plaintiff's costs and interest memorandum was "a
diatribe against
the defendants' character and behaviour".
[64] Berry submitted that Mr O'Neill failed in all respects of his professional
obligations,
especially where dealing with an unrepresented defendant. That Mr
O'Neill continuously sought to gain tactical advantage by tactics
and machinations,
which included blatant abuse of planning for hearing dates, attempting to bring
matters before a Judge at mentions
or chambers hearings without the defendants
present or aware, and even presenting a document purportedly on behalf of the
defendants.
He submitted that Mr O'Neill's breach of professional conduct went
much further than that, in that he made a direct threat to him
that he would frustrate
his admission to the bar if the defendants would not give in to a settlement proposal
that was suggested
by the plaintiff. He submitted that Mr O'Neill had given effect to
that threat.
[65] Berry submitted that the appropriate number
of hearing days was 19.5 and
not 22. He opposed Mr O'Neill's submission that costs allowance be made for Mr
Reeves either as second
counsel or as a disbursement. He submitted that Mr Reeves
played no role at trial whatsoever, apart from acting as a messenger between
counsel
and the plaintiff, and that any preparatory work by Mr Reeves must be included in
the preparation allocation for counsel.
[66] Berry submitted that the plaintiff's costs calculation was highly and
inappropriately inflated and that the plaintiff's
correct costs claim in accordance with
the High Court Rules schedules ought to have been, at the most, $111,507.50, which
with disbursements
of $101,647.96 resulted in "Total costs and disbursements
appropriately sought $213,155.46".
[67] Berry submitted a schedule
of the defendants' costs based on 2B
category/band. These he said were restricted to costs in the period that the
defendants
were legally represented. The schedule stated costs totalling $8,820,
which Berry submitted should be awarded to the defendants,
and costs totalling
$14,215, which were to be determined. These totalled $23,035. Berry also
submitted a schedule
of defendants' disbursements totalling $140,505.44. Included
in these disbursements, under the item headed "Costs associated with
self-
representation", was $45,000 for "Legal studies at Auckland University: estimate
inc. travel etc.".
[68] Berry submitted
that there were five different approaches which the Court
could take to determination of costs in this matter.
[69] Approach
one was costs determination by taking a very global view of the
issues. Berry submitted:
... it would be appropriate to
take the view that parties were similarly
(un)successful. In this view costs should lie were [sic] they have fallen, with
the exception of the concluded steps where the outcome was non-ambiguous.
That would leave a cost judgment for the
defendants on the summary
judgment ($6,500 plus $260 disbursements) and on the adjournment
application ($2,320 plus
$600 disbursements). This approach would be fair,
as the defendants have already paid the costs on an interlocutory step
in
which the plaintiff was successful. This approach would result in a cost
award of $9,680 for the defendants.
[70] Approach two was costs determination by considering proportionality with
the amounts awarded. Berry submitted that the plaintiff had succeeded in obtaining
only approximately
5% of the value of his monetary claims and, in terms of land
transfer, had only succeeded in obtaining what he already had available.
Accordingly, a maximum appropriate award would be between 5% and 20% of the
awarded monetary amount. This would have to be offset
by the costs on completed
and non-ambiguous interlocutory applications. Berry submitted that the effect would
be a neutral determination
on costs, or a small cost award to the defendants.
[71] Approach three was costs determination by considering the individual
causes
of action in detail and calculating relative success. Berry submitted:
In this approach the result of each cause of
action would be considered
separately, together with its approximate proportion of the proceeding effort.
The relative
success of each party can then be approximated, and multiplied
with the total costs and disbursements claimed by each party
(using the
corrected amounts for the plaintiff).
[72] Berry provided a schedule setting out the defendants' submissions
about the
relative success of the plaintiff and the defendants on the ten causes of action, the
percentage of the proceeding that
each cause of action occupied, and the appropriate
consequent costs. His calculations on the schedule showed a resulting overall
award
of costs of $25,332.75 to the defendants.
[73] Approach four was costs determination by considering the individual causes
of action, with an appraisal of reasonable time to argue. Berry submitted that this
would be an appropriate method in this case.
He said:
... as much time was spent on issues that were at best secondary or
peripheral, while many issues that were
central were canvassed, but at a
level of detail that was entirely unwarranted and ought to have been
concluded in
the aborted expert conference. In addition, much time was
spent on matters that were untenable, could not be proven, or were
non-
contentious.
Such an approach would also alleviate some of the problems caused in this
case with the 2:1
approach from schedule 3 (8). The defendants submit that
a reasonable estimate of trial time would be 8-10 days, as the matter
was
initially indeed set down for.
Berry submitted that approach four would result in a costs award of $5,739.98 for the
defendants.
[74] Berry called approach five "an entirely equitable appraisal". He submitted:
The Court could also take
the view that both parties have been similarly
(un)successful, but the plaintiff has achieved an award on
contractual/technical
principles, while he in reality received more than what
he had paid for. ...
The defendants submit that it would
be entirely equitable to conclude that
the defendants have been subjected to much unnecessary stress and
upheaval,
while they had always performed more than what they have been
compensated for. It would therefore be equitable to award costs
to the
defendants to the amount of $46,151.62, and to decline to award interest to
the plaintiff.
[75] In his second
costs and interest memorandum Berry refuted Mr O'Neill's
submission that the plaintiff was a reluctant litigant and, referring to
settlement
offers that the defendants had made and their attempts to engage the plaintiff in some
form of alternative dispute resolution,
Berry submitted that sufficient reasons existed
for the Court to refuse costs to the plaintiff under r 48D(e) and (f). Berry also
submitted that:
In addition, when the inflated and unrealistic claims by the plaintiff are
stripped from his causes
of action, what remains is a claim that is well within
the jurisdiction of the District Court (with the exception of the boundary
and
septic tank issues, but the plaintiff could have accepted the defendants' often
repeated offer in that respect). There is therefore a principled
basis to argue
that in fact District Court cost schedules should be applied, if any.
Decision
[76] This proceeding initially
sought only specific performance of transfer of land.
After the proceeding was served the defendants claimed underpayment by the
plaintiff of $296,040.73. The plaintiff investigated that claim, and claimed in an
amended statement of claim that he had overpaid
$381,305. The defendants then
filed a counterclaim claiming underpayment of $296,040.73, plus $522.16 for
easement repairs and retaining
wall removal and restoration orders.
[77] The District Court did not have jurisdiction to hear and determine the land
issues
and damages claimed in the proceeding. The proceeding was necessarily and
appropriately started, heard and decided in the High Court.
There is no justification
for deciding costs in this case upon the basis of the District Court costs provisions.
Costs should be
decided according to the High Court Rules.
[78] Rule 46 states:
(1) All matters relating to the costs of and incidental
to a proceeding or a
step in a proceeding are at the discretion of the Court
(2) Rules 47 to 48G apply
subject to subclause (1).
...
[79] In delivering the judgment of the Court of Appeal in Glaister & Ors v
Amalgamated Dairies
Ltd & Ors [2004] 2 NZLR 606, Hammond J said:
[21] The new costs regime, as between competing parties, is of a
regulatory character. It is important
that the integrity of that scheme be
maintained, and that if monetary adjustments to the scale are to be made that
they be made on a national basis by the rules committee. In fact certain
monetary adjustments were made to have effect from
1 January 2004, and
there is no present reason to think that the former problem of rate
obsolescence will arise.
[22] When a departure is to be made from the High Court Rules'
allowances, it is necessary that it be done in a
particularised, and principled
way. As was observed by this Court during the course of argument, the
problem is a familiar
one in our jurisprudence a scheme of general
application is laid down, but provision then has to be made for something
that is not contemplated within the scheme or which is unfairly recognised
by it.
[23] The allowances in
the High Court Rules may be inappropriate in a
given case. In commercial litigation, the difficulties will usually arise in
one
of two areas where there is an unusual volume of discovery; or where, for
some reason, the quite generous allowanace
of two days' preparation for trial
for every day of trial is inadequate.
[24] To put this another way, there is
a relatively obvious logic to the
monetary allowances in the new rules and the discretion exists to enable the
unexpected
and the unforeseen to be fairly accommodated. It is not a case of
R 46 having an exclusionary primacy over R 47 (or any other
rules): the
rules are complementary, and designed to produce an effective whole.
[80] Rule 47 states:
The following
general principles apply to the determination of costs:
(a) The party who fails with respect to a proceeding or an interlocutory
application should pay costs to the party who succeeds:
(b) An award of costs should reflect the complexity
and significance of
the proceeding:
(c) Costs should be assessed by applying the appropriate daily recovery
rate to the time considered reasonable for each step reasonably
required in relation to the proceeding
or interlocutory application:
(d) An appropriate daily recovery rate should normally be two-thirds of
the daily rate considered reasonable in relation to the proceeding or
interlocutory application:
(e)
What is an appropriate daily recovery rate and what is a reasonable
time should not depend on the skill or experience
of the actual
solicitor or counsel involved or on the time actually spent by the
actual solicitor or
counsel involved or on the costs actually incurred
by the party claiming costs:
(f) An award of costs
should not exceed the costs incurred by the party
claiming costs:
(g) So far as possible the determination
of costs should be predictable
and expeditious.
[81] In this proceeding the general principle that the party who
fails should pay
costs to the party who succeeds, is appropriate, but its application is not simple and
straightforward, mainly because
each party failed on some causes of action. The
plaintiff pleaded and went to trial on seven causes of action. He failed on two of
the
six on which judgment was given. It was not necessary to decide the seventh as it
was alternative to a cause of action on which
the plaintiff succeeded. The defendants
pleaded three counterclaim causes of action. They failed on two. They also failed in
their
claims in their third counterclaim cause of action for exemplary damages and
removal and restoration orders for trespass and they
received only an award of
nominal damages of $1.
[82] In delivering the judgment of the Court of Appeal in Body Corporate 97010 v
Auckland City Council
(2000) 15 PRNZ 372 Blanchard J said:
[19] Whilst r 46 gives the High Court an overriding discretion in relation
to costs, that discretion
is to be exercised generally in accordance with rr 47
to 48G. A successful party will usually be entitled to costs against
an
unsuccessful party (r 47(a)). But costs may be reduced, or no order made in
favour of the party successful overall,
if that party "has failed in relation to a
cause of action or issue which significantly increased the costs of the party
opposing costs" (r 48D(d)).
[83] In delivering the judgment of the Court of Appeal in Packing In Ltd v
Chilcott (2003) 16 PRNZ 869 Tipping J said:
[5] In a case such as the present, where in broad terms each party has
had similar success, we
do not consider it helpful to focus too closely on the
question which party has failed and which has succeeded. Costs in a
case
such as this should rather be based on the premise that approximately equal
success and failure attended the efforts
of both sides. To that starting point
should be added issues such as how much time was spent on each transaction
or
group of transactions in issue, and any other matters which can reasonably
be said to bear on the Court's ultimate discretion
on the subject of costs. In
the end, as in all costs matters, the Court must endeavour to do justice to
both sides,
bearing in mind all material features of the case.
[84] Accordingly, in this case, where each party has failed on some causes
of
action I decide the trial costs and trial disbursements on a proportionality of trial
success basis.
[85] It is logical and
just that determination of pre-trial costs and disbursements
for standard steps such as discovery and callover also be on a proportion
of trial
success basis. However, as prescribed by Rule 48E, unless there are special reasons
to the contrary, costs and disbursements
on each opposed interlocutory application,
other than a summary judgment application, should be fixed on a discrete basis.
[86]
In deciding trial proportionality of trial success I have assessed the portion of
the trial time that each cause of action reasonably
occupied. I have taken into
account the relief sought and obtained for each cause of action and the complexity
and relevance of its
factual and legal issues. As some evidence and submissions
were common to more than one cause of action and because time spent on
each
factual and legal issue was not specifically identified and recorded, assessment
cannot be on a precise mathematical basis.
In the words of Tipping J in the passage
of the Chilcott judgment quoted earlier, I have endeavoured "to do justice to both
sides,
bearing in mind all material features of the case".
[87] In para [19] of the Auckland City judgment referred to earlier Blanchard
J
went on to say:
Similarly, there may be a reduction, or even no order at all, where conduct of
the party claiming
costs has contributed unnecessarily to the time or expense
of the proceeding, or a step therein, in any of the ways specified
in r 48D(e).
Also to be noted is r 48D(f) which provides for refusal or reduction of costs
if some other reason exists
justifying that course "despite the principle that
the determination of costs should be predictable and expeditious".
[88]
I find that Berry lengthened the trial by giving or calling much evidence
which was of limited or no relevance to the disputed
issues and by unreasonably
repeating topics in cross-examination. However, because of the high emotional
context of the case and
Berry's lack of advocacy experience, Berry's trial conduct is
not a factor on which I find adversely to the defendants in assessing
costs. Nor do I
find as an adverse costs factor, the detail and complexity of factual and legal matters
pursued by Berry. I do
not consider that he did this purposely to cause expense to
the plaintiff but rather as part of his zealous attempt to obtain success
for the
defendants' claims and to defeat the plaintiff's claims.
[89] The plaintiff may have been disadvantaged by the late provision
of Mr
Bayley's statement of evidence and Berry's statement of evidence. However, Mr
O'Neill did not seek adjournment and seemed to
cope.
[90] I do not accept Berry's submission that costs allowance to the plaintiff should
not be made or should be reduced because
the defendants had continuously sought to
resolve the issues with the plaintiff by other means such as mediation, arbitration and
expert determination which the plaintiff turned down or frustrated and that the
plaintiff deliberately obstructed the expert conference. Mediation was conducted by
Mr T
Kennedy-Grant QC in June 2004 but was unsuccessful. Settlement
correspondence discloses that Berry sought settlement
or arbitration resolution
predominantly on his terms and very much according to his subjective view of what
was reasonable. In [283]
[287] of the trial judgment I referred to the experts'
conference ordered by MacKenzie J and the failure of Mr Gemmel and Mr Bayley
to
make a joint report. As stated I did not conduct an enquiry before or during the trial
about who, if anyone, was at fault for
the failure. I do not accept Berry's submission
that the plaintiff deliberately obstructed the experts' conference. The failure to
produce a joint witness statement arose from a number of factors including failure by
the defendants to comply with timetable orders
for supplying statements of evidence
and the basic difficulty that there was a large amount of conflicting information, at
the heart
of which was the plaintiff's assertion of a fixed price contract with a limited
remuneration component and the defendants' assertion
of a cost plus agreement with
open ended remuneration. In light of the differences stated by Mr Gemmell and Mr
Bayley at trial on
the matters stipulated by MacKenzie J, I consider it is unlikely that
if a joint report had been prepared by them before trial this
would have significantly
reduced the duration of the trial.
[91] I am not able to make any findings on Berry's allegations of
professional
misconduct by Mr O'Neill but comment that I did not see any sign of misconduct by
Mr O'Neill in any respect. There
is clearly no substance in Berry's allegation that
Mr O'Neill presented a document purportedly on behalf of the defendants. Although
the cover sheet of the document concerned described it as "Memorandum on behalf
of the defendants for taking of evidence", the memorandum
was signed by Mr
O'Neill as counsel for the plaintiff and said that the application was opposed by the
defendants. It was obvious
from its contents that it was a plaintiff's memorandum
and that the reference to the defendants in the cover sheet description was
plainly a
typing error.
[92] If Berry pursues his allegations of professional misconduct this will need to
be in another forum
or proceeding. Even if they had been proved in this proceeding
I would not have penalised the plaintiff personally by declining or
reducing costs to
him.
[93] It would be irregular and inappropriate to allow second counsel costs
allowance pursuant to item
4.16 of Schedule 3 of the Rules as application was not
made for this and would not have been allowed as Mr Reeves was not a law
practitioner
at the relevant times.
[94] I reject Berry's submission that the plaintiff should not be allowed costs for
his successful alternative
cause of action seeking transfer of 327 m2 "as this was
always available to [the plaintiff] in any event". The defendants' offers
to transfer
this land were not unconditional. For instance, in a letter dated 21 May 2003 to Mr
O'Neill, Mr Roscoe said:
Berry Zondag remains prepared to transfer the 327 m2 including the
driveway and parking area and if it is over the boundary
will also transfer the
septic tank area (approx 10 m2) but requires Hans to negotiate in respect of
the unauthorised
encroachment of Hanz' two retaining walls.
In their statement of defence the defendants pleaded that they remained "willing,
able
and prepared to transfer ... the 327 m2 for the parking area and 10 m2 for the
septic tank ... on such terms including price as this
Court may consider appropriate
and just" (emphasis added). They maintained this stance throughout the trial and
sought a substantial
price for the 337 m2.
[95] In Schedule 1 of this judgment I have set out my assessment of the
reasonable proportion of the trial
time occupied by evidence and submissions for
each of the nine pertinent causes of action. I have also set out my assessment of the
proportion of success of each
party for each pertinent cause of action.
[96] As stated, some of the evidence and submissions, for instance that about
credibility
and reliability, overlapped causes of action. By far the greatest volume of
trial evidence and submissions related to the disputed
issues of Lot 6 arrangements,
payment and quantum which were the subject of the plaintiff's fourth cause of action
for alleged overpayment
and the defendants' first counterclaim cause of action for
alleged underpayment. The plaintiff succeeded to a substantial extent
in his claim
for overpayment and the defendants failed completely in their claim for
underpayment.
[97] Next in amount of time
taken was the north boundary dispute over transfer of
land for the encroaching parking area and septic tank. I found that there was
an
enforceable agreement to transfer 327 m2 of Lot 7 to Lot 6 but although Berry had
led Hans to believe that he and Mei would transfer
1,676 m2 and took steps
consistent with this, nevertheless I was not satisfied that the 327 m2 contract was
later varied or replaced
to cover this. I therefore gave judgment to the defendants on
the plaintiff's unsuccessful first cause of action for transfer of
the 1,676 m2 but gave
judgment to the plaintiff for his alternative cause of action for 327 m2. The
defendants' offer to
transfer this land was subject to conditions particularly payment
for the land and they sought this at trial. I found that the plaintiff
need not pay any
price for the land. I assess that a reasonable proportion of the trial time for the north
boundary dispute totals
15% and because the plaintiff failed in his claim for 1,676
m2 but succeeded in his alternative claim for 327 m2 without having to
pay a price
for that land, it is appropriate to apportion success of 10% to the defendants and
success of 5% to the plaintiff.
[98] I estimate that the plaintiff's sixth cause of action for damages for faulty
work took a reasonable proportion of 10% of the
trial time. The plaintiff pleaded
alleged defects or incomplete work in six respects. First, rusting of handrails.
Second,
cracking of plaster cladding. Third, interior downlights malfunction.
Fourth, exterior lights malfunction. Fifth, general
maintenance. Sixth, provision of
retaining wall due to land slippage. The defendants accepted that the handrails were
below standard
but disputed liability and quantum for this. I gave judgment for the
plaintiff involving either rectification or payment of $4,440.
The plaintiff's claims
for the other five aspects of alleged faulty or incomplete work failed. There was
substantial evidence on
the alleged lighting defects but very little or no evidence on
liability for the plaster cladding, general maintenance, and land
slippage claims. As
the plaintiff failed for a major part of his claim for faulty work, but having regard to
the fact that little
time was taken in evidence and submissions on many of the faulty
work aspects for which there was failure, I assess that the success
proportion for
faulty work as 8% for the defendants and 2% for the plaintiff.
[99] As their second counterclaim cause of action
the defendants pleaded that the
plaintiff constructed a retaining wall on Lot 6 which encroached on to Lot 7 and also
two smaller
retaining walls situated entirely on Lot 7, without their approval. They
sought an order that the plaintiff remove the retaining
wall where it encroached on
Lot 7 and restore the land and vegetation. They also claimed exemplary damages.
[100] I estimate a
reasonable proportion of trial time for the retaining walls
(trespass) cause of action as 6%.
[101] I found that the plaintiff's
acts of intentionally entering on to part Lot 7
without consent and causing the retaining walls to be built on it constituted trespass
to that land. However, in the circumstances I considered that the appropriate remedy
was not exemplary damages and/or removal and restoration order but only nominal
damages,
which I fixed at $1.
[102] Receipt of nominal damages does not necessarily amount to success
justifying a consequent award of costs:
Dehn v Attorney-General [1988] 2 NZLR
564, 586; Brown v Dunsmuir [1994] 3 NZLR 485, 488. Like the damages, the
claimant's success may have been only nominal and real success be with the other
party. Because of the
result and the circumstances stated in [599]-[611] of the trial
judgment I decide that neither side should receive costs for the
defendants'
counterclaim second cause of action.
[103] I estimate a reasonable proportion of trial time for the defendants' third
counterclaim cause of action for easement repairs as 5%. Although the amount
claimed was only $522.16, there was considerable evidence
on the subject,
particularly in pertinent documents. The defendants failed completely on this
counterclaim cause of action.
[104] The evidence on the plaintiff's seventh cause of action for interest on capital
was included in Han's and Berry's evidence
about the north boundary dispute and
the circumstances of Hans and his family leaving Lot 6. There was no expert
valuation, real
estate, or accounting evidence on the loss of interest aspect. I
estimate that a reasonable proportion of trial time spent
on it was 3%.
[105] The evidence and submissions on the plaintiff's third cause of action for
southern boundary positioning of
the driveway occupied a relatively short time.
Although the defendants pleaded numerous defences to the claim there was not
lengthy
evidence on the point and in his closing submission Berry suggested that the
matter be resolved simply by variation of the existing
driveway easement. I
considered that this suggestion was sensible and appropriate and ordered
accordingly. I estimate
that a reasonable proportion of trial time for this cause of
action was 1%.
[106] Although the trial involved 10 disputed causes
of action which in total
required and received considerable evidence and submissions, the issues both
individually and collectively
were only of average complexity and did not require
counsel to have special skill and experience in the High Court. In my view for
all
steps in the proceeding the appropriate r 48 category is category 2.
[107] Court records disclose that the trial was heard
on 44 half days. Sometimes I
did not sit on the trial for the whole of a half day. This was because I was often the
only High Court
Judge available in Hamilton to deal with matters which required
urgent attention, such as bail and interim injunctions. There were
also instances
when I did not sit for a full half day because of witness difficulties or completion of
a particular issue. After
the plaintiff expressed concern that he was still required to
pay full hearing fees at the fixed half day rate when the Court did
not sit for a full
half day, I considered that it was fair to request the Registrar to waive payment of
some hearing fees, and
I directed accordingly.
[108] Schedule 3 of the Rules allocates time for hearing defended summary
judgment and interlocutory applications
according to the time occupied by the
hearing measured in quarter days. Its measure for defended general civil
proceedings
is half days. This indicates intention that the hearing of defended
general civil proceedings is to be measured by the unit of a
half day or part thereof. I
assess costs by the measure of half days or part thereof and decide costs for the trial
on the basis
that it occupied 44 half days.
[109] For the reasons given I determine and award trial costs as stated in Schedule
2 of this judgment.
Disbursements
[110] In Schedule 3 of this judgment I have set out the disbursements which the
plaintiff and defendants' claimed
and those which I allow.
[111] Berry made submissions on many of the disbursements claimed by the
plaintiff. On plaintiff's item
7 he submitted that the filing fee of $260 had already
been paid by the defendants and he produced a letter supporting this. Hans
accepted
this. I do not allow this item.
[112] On plaintiff's item 14 Berry pointed out that Mr Dunwoodie was not called as
a witness.
He also said that the results of the Dunwoodie survey were not disclosed
when asked for and the defendants had to engage another surveyor to obtain this
information. Mr O'Neill and Hans
did not dispute these points. I do not allow this
item.
[113] Berry disputed item 20, saying that this related to an envelope left
on the
defendants' doorstep, containing the plaintiff's first memorandum of costs. He
submitted that this required no service
other than by mail, it was well within the time
limit, and no formal service took place. He referred to a letter from Mr O'Neill.
However, the process server's report of 4 July 2007 shows the prudence of
attempting direct service. I allow the disbursement claimed
of $135.
[114] On item 21 he submitted that the filing fee was not payable as the judgment
had not been sealed. This has been done.
I allow the $40 claimed.
[115] I consider that the amounts paid and claimed for the expert witnesses, Mr A
Gemmell and Mrs Van
Vurt, are reasonable. The plaintiff should be partly
reimbursed for the fees of Mr Gemmell, Mrs Van Vurt and Mr Brokenshire
on the
proportion of trial success basis.
[116] Defendants' items 1-6 inclusive are Court fees paid by them. For the reasons
given
earlier I do not allow items 1, 3, 4, 5 and 6. Item 2 should be partly
reimbursed on the proportion of trial success basis.
[117] Defendants' items 7-10 inclusive are verified by invoices and should be
partly reimbursed on the proportion of trial success
basis.
[118] Defendants' items 11, 12 and 14 are verified by invoices and should be partly
reimbursed on the proportion of trial
success basis.
[119] Defendants' item 13 relates to the invoice from the Court requiring the
defendants to pay half of the costs
of the Netherlands video evidence. Mr O'Neill
provided a copy of the Court invoice. He advised that Vidcom gave a credit of
$798.75
and he therefore claimed the balance of $911.25. I assume that an identical
credit was given to the defendants and accordingly I
allow the sum of $911.25 to be
partly reimbursed on the proportion of success basis.
[120] I consider that the amounts paid and
claimed by the defendants for the expert
witnesses, Mr Bayley, Mr Kiewik and Mr Millington, are reasonable and should be
partly reimbursed
on the proportion of trial success basis. So also for defendants'
item 19.
[121] None of the $45,000 claimed as item 20 "for legal
studies at Auckland
University; estimate inc travel etc" which is claimed as "costs associated with self-
representation" is payable
as a disbursement and I do not allow it. Similarly, items
21 and 22, being the defendants' costs of travelling to and from Hamilton
and motel
accommodation during the trial, are not payable as disbursements by the plaintiff and
I do not allow them.
Interest
[122] The plaintiff seeks interest of $19,138.38 on the judgment sum of $46,151.62
awarded for the plaintiff's fourth cause of action.
[123] Berry did not object to Mr O'Neill's calculation dates from 17 February 2002
to 19 June 2007 but submitted that interest
owed to the defendants must be set-off
against the plaintiff's claim for interest resulting in interest of only $2,156.01
payable
to the plaintiff. Berry submitted that in addition the question must be raised
whether any interest is equitable in that situation
and on the current judgment
because cash had been paid to labourers and the defendants did not get credit for any
of this because
of failure to prove how much cash had been paid.
[124] Mr O'Neill also sought an additional $1,823.93 as interest on the $4,400
payable for the successful rusting handrail aspect of the plaintiff's sixth cause of
action.
[125] Berry submitted that this claim
was "conceptually flawed" as the judgment
required that the $4,400 be paid only after the plaintiff unsuccessfully attempted to
engage
Thames Stainless to do the repairs. Berry submitted that not only was the
claim for interest on $4,400 conceptually flawed, it was
also substantially unjust.
[126] In trial judgment [261] I found that the plaintiff made a last payment of
$60,000 to the defendants on 19 February 2002.
Of that, $46,151.62 was an
overpayment. In his fourth cause of action the plaintiff sought interest on the
amount of any
overpayment. Because of those factors and the overall circumstances
I think it fit to exercise the discretion given by s 87 of the
Judicature Act 1908 to
award interest on the amount of the overpayment from the date of the overpayment
until judgment at the maximum
prescribed rates claimed.
[127] Before the filing of the proceeding in October 2002 the defendants did not
claim that the plaintiff
had made any late payments to them for the land and/or
driveway and house design and construction and seek interest for this. In
their
counterclaim they sought only Judicature Act interest from 20 February 2003, being
one month after the date of their first
demand for that alleged underpayment of
$299,623.05. Their claim for alleged underpayment failed. In the circumstances I
do not consider
it appropriate and just to off-set any interest sum now sought by the
defendants. The plaintiff's claim for interest of $19,138.38
succeeds.
[128] As stated in trial judgment [552]-[554] Berry testified that he had resolved
the rusting handrail dispute with
Thames Stainless and he produced the settlement
agreement which provided for satisfactory remedial works to be done or a settlement
amount of $4,400 to be refunded to Berry. I was told that the $4,400 had been paid
into the trust account of Swarbrick Dixon, Thames
Stainless' solicitors, and was still
there. In [554] I said that in light of the time conditions stated in the agreement there
was
uncertainty about whether the settlement agreement was still binding but made
orders to allow the remedial work to be done and if
this was not achieved, for the
refund of $4,400 to Berry to be paid by the defendants to the plaintiff as damages for
the faulty
stainless steel work. Berry's costs memorandum dated 2 August 2007
disclosed that Swarbrick Dixon had refunded the $4,400 to him
on 8 February 2006.
Had I been aware of this before the trial judgment was delivered I would simply
have ordered that the $4,400
be paid to the plaintiff as damages as it would have
been pointless and futile for the plaintiff to attempt to get Thames Stainless
to
remedy the faulty handrail in terms of the no longer operative settlement agreement.
This pointlessness and futility continues
as Thames Stainless no longer is required to
do the remedial work as provided in the settlement agreement. In this situation the
defendants should have paid the $4,400 to the plaintiff as soon as they received it.
As the defendants have had the $4,400 since
its refund on 8 February 2006 I think it
fit that they pay Judiciature Act interest on it to the plaintiff at 7.5% per annum from
8 February 2006 to the date of this costs and interest judgment, being $540.66.
[129] Therefore the total interest payable is $19,679.04.
Results
[130] The defendants are ordered to pay net costs and disbursements to the plaintiff
of $162,945.54.
[131] The defendants
are ordered to pay interest to the plaintiff of $19,679.04.
___________________________________
Nicholson J
JUDGMENT
SCHEDULE 1 PROPORTION OF SUCCESS
Cause of Subject Reasonable Result Success proportion
Action
proportion (as %)
of trial time
Plaintiff Defendants
(as %)
P4 & D1
Lot 6 arrangements, 60 Judgment for 60
payment and quantum plaintiff
10 Judgment for
P1 Transfer north
10
boundary (1,676 m2) defendants
5 Judgment for
P2 Transfer north
5
boundary (alt 327 m2 plaintiff
and 10m2)
P6 Faulty work 10
Judgment for 2 8
plaintiff for
part
D2 Retaining walls 6 Judgment for 3 3
(trespass)
defendants
for nominal
damages
D3 Easement repairs 5 Judgment for 5
plaintiff
P7 Interest on capital 3 Judgment for 3
defendants
P3 South boundary 1 Judgment for 1
plaintiff
Total proportion of success 76 24
JUDGMENT SCHEDULE 2 COSTS
Sch 3 Category / Pltf Defts Pltf
Defs
Item Band Time Time Award Award
Summary judgment costs
1 Preparing
and filing 5. - - - - -
summary judgment
application and
supporting
affidavits
2 Preparing and filing 5. - - - - -
opposition and supporting
affidavits
3 Arguing defended 5. 2B 1.0 1,300.00
summary judgment
application
- 1,300.00
Caveat costs
4
1.0 2B 3.0 4,350.00
Commencement of
originating application by
plaintiff
5 Appearance at mentions 4.17 2B 0.2 290.00
hearing
6 Obtaining interim order 6.0
2B 0.3 435.00
7 Sealing interim order 4.18 2B 0.2 290.00
5,365.00 -
Pre-trial costs
A. Pre 1 January 2004
8 Commencement
of 1. 2B 3.0 3,900.00
proceeding by plaintiff
9 2.
2B 2.0 2,600.00
Commencement of
defence by defendant
10 Counterclaim
3. 2B 1.6 2,080.00
11 2. 2B 2.0 2,600.00
Commencement of
defence to counterclaim
12 Pleading in response to 3. 2B 0.6
780.00
first amended statement
of claim
13 3. 2B 0.6 780.00
Pleading in response to
first amended
counterclaim
14 3. 2B 0.6
780.00
Pleading in response to
second amended
counterclaim
15 Memorandum for judicial 4. 2B
0.4 0.4 520.00 520.00
conference
Sch 3 Category / Pltf Defts
Pltf Defs
Item Band Time Time Award Award
16 Appearance at judicial
4. 2B 0.3 0.3 390.00 390.00
conference
17 4. 2B
0.6 0.6 780.00 780.00
Memoranda for mentions
hearings on 10 November
2003, 13 November 2003
and
8 December 2003 (.2
x 3)
18 3. 2B 0.6 780.00
Pleading in response to
third amended
counterclaim
10,530.00 7,150.00
Less 24% failure proportion 2,527.20
Less
76% failure proportion 5434.00
8,002.80 1,716.00
B. Post 1 January 2004
B1. Contested interlocutory application
19 Preparation and
- - - - 1,500.00 -
appearance at contested
hearing on 1 September
2004 (Cooper J)
20 Preparation and - - - - 1,450.00 -
appearance at contested
hearing on 7 October
2004 (MacKenzie J)
2,950.00
-
B2. Other pre-trial costs
21 List of documents on 4.5 2C 6.0 6.0 8,700.00 8,700.00
discovery
22 Production of documents 4.6 2C 3.0 3.0 4,350.00 4,350.00
for inspection
23 Inspection
of documents 4.7 2C 6.0 6.0 8,700.00 8,700.00
24 4.17 2B
0.2 0.2 290.00 290.00
Appearance at mentions
hearing 16 June 2004
25 Pleading in response to 3.6
2B 0.6 870.00
second amended
statement of claim
26 4.17
2B 0.2 0.2 290.00 290.00
Appearance at mentions
hearing 29 September
2004
27 Pleading
in response to 3.6 2B 0.6 870.00
fourth amended
counterclaim
28 Appearance at callover
4.17 2B 0.2 290.00
8 December 2004
(Venning J)
Sch 3
Category / Pltf Defts Pltf Defs
Item Band Time Time Award
Award
29 Filing memorandum for 4.10 2B 0.4 580.00
mentions hearing 16
February 2005
30 Appearance at mentions 4.17 2B 0.2 290.00
hearing 22 February 2005
31 Filing memorandum
for 4.10 2B 0.4 580.00
mentions hearing 15
March 2005
32 Appearance at conference
4.11 2B 0.3 435.00
23 March 2005
(Nicholson J)
33 Filing memorandum 3
2B 0.4 580.00
June 2005
34 Filing memorandum 14 2B 0.4 580.00
June 2005
35 4.12 2B 0.6 870.00
Preparation and filing of
application to take
evidence
36 Preparing for hearing of 4.14 2B 0.25 362.50
application
to take
evidence
37 Hearing of application to 4.15 0.25 362.50
take evidence - 16 May
2005
38 Preparing for taking of 0.5 725.00
evidence
39 Taking of evidence
0.5 725.00
40 Pleading in response to 3.6 2B 0.6 870.00
fifth amended
counterclaim
33,400.00 23,200.00
Less
24% failure proportion 8,016.00
Less 76% failure proportion
17,632.00
25,384.00 5,568.00
Trial
(and following) costs
41 Preparing for hearing 8 2B 44.0 63,800.00
42 Appearance at hearing
9 2B 22.0 31,900.00
43 Sealing judgment 4.18 2B 0.2 290.00
95,990.00
Less 24%
failure proportion 23,037.60
76% success proportion
72,952.40
JUDGMENT SCHEDULE 3 DISBURSEMENTS
A. PLAINTIFF
Claim Item
Claimed Allowed Allowed
No
Totals
Summary Judgment
1 Filing Fee 260.00 -
-
Caveat
2 Filing fee 1,100.00 1,100.00
3 Sealing fee
40.00 40.00
1,140.00 1,140.00
Contested interlocutory application
4
600.00 600.00 600.00
Filing fee on application for further and better
discovery (heard 1 September 2004,
Cooper J)
Pre-trial disbursements
5 Filing fee on statement of claim 900.00 900.00
6
Service fees 75.00 75.00
7 Filing fee on amended statement of claim
65.00 -
8 Filing fee on application for orders enforcing 260.00 -
timetable
9
File fee on application for taking of evidence 600.00 600.00
10 Filing fees for statement of defence to amended
335.00 335.00
counterclaims x 4
11 Preparation of bundle of documents 2,893.94 2,893.84
12 Setting down fee 2,600.00 2,600.00
13 Photocopying costs P Corringe
151.12 151.12
14 Dunwoodie surveying fees 1,164.20 -
7,554.96 7,554.96
Trial (and following)
15 Hearing fees
50,050.00 50,050.00
16 A Gemmell (quanty surveyor) 35,635.49
35,635.49
17 R Van Vurt (translator) 5,965.63 5,965.63
18 Brokenshire (Plumber)
98.00 98.00
19 Vidcom (1,710.00 798.75 credit) 911.25 911.25
20
Service fees 135.00 135.00
21 Sealing fee on judgment
40.00 40.00
92,835.37 92,835.37
100,390.33
Less 24% failure proportion
24,093.68
76% success proportion
$76,296.65
B. DEFENDANTS
Claim Item Claimed Allowed Allowed
No Totals
Summary Judgment
1 Filing
Fee summary judgment (notice of
260.00 - -
opposition)
Pretrial
2 Filing fee on statement of defence 65.00 65.00
3 Filing fee
on application for adjournment 600.00 -
4 Filing fee on application particulars/discovery 600.00
-
5 Filing fee on application discovery / 600.00 -
adjournment / expert
6
Filing fee on application amended pleading 1,100.00 -
7 1,120.16 1,120.16
Photocopying, toll calls, facsimiles P
Gorringe
8 Photocopying D O'Neill
73.57 73.57
9 Photocopying lasercopy 33.48 33.48
10
P Gorringe house inspection 646.87 646.87
1,939.08 1,939.08
Trial (and following)
11 P Gorringe legal advice 12,009.00
12,009.00
12 2,362.50 2,362.50
Vidcom USA & Netherlands cancellation
fee
27.07.05
13 Vidcom Netherlands 12.12.05 1,710.00 911.25
14 Vidcom USA 9.12.05
826.87 826.87
15 G Bayley (quantity surveyor) 66,731.42 66,731.42
16 W Kiewick (translator) 990.00 990.00
17 F Millington (surveyor)
1,902.00 1,902.00
19 Copy, facsimile, phone 500.00 500.00
20 Legal studies
at Auckland University: estimate 45,000.00 -
including travel etc
21 Accommodation
1,514.57 -
22 Travel 1,860.00 -
86,233.04 86,233.04
88,172.12
Less 76% failure proportion
67,010.81
24% success proportion $21,161.31
JUDGMENT SCHEDULE 4
COSTS AND DISBURSEMENTS RESULTS
1 Summary Judgment costs and disbursements
Costs to defendants
1,300.00
Net costs payable by the plaintiff to the
defendants
$1,300.00
2 Caveat costs and disbursements
Costs to plaintiff
5,365.00
Disbursements to plaintiff 1,140.00
6,505.00 6,505.00
Net costs and disbursements payable
by the
defendants to the plaintiff $6,505.00
3 Contested interlocutory
application
Costs to plaintiff 2,950.00
Disbursement to plaintiff
600.00
$3,550.00
4 Pre-trial and trial costs and disbursements
Plaintiff
Pre-trial costs - pre 1 January
2004 8,002.80
- post 1 January 2004 25,384.00
33,386.80 33,386.80
Trial costs 72,952.40
Pre-trial
and trial disbursements 76,296.65
182,635.85
182,635.85
Defendants
Pre-trial costs - pre 1 January 2004 1,716.00
- post 1
January 2004 5,568.00
7,284.00 7,284.00
Trial costs
-
Pre-trial and trial disbursements 21,161.31
28,445.31 28,445.31
Net pre-trial and trial costs
and
disbursements payable by the defendants to
the plaintiff $154,190.54
5 Summary
Net caveat costs and
disbursements payable by
the defendants to the plaintiff 6,505.00
Net contested interlocutory costs
payable by the
defendants to the plaintiff 3,550.00
Net pre-trial and trial (and following) costs
and
disbursements payable by the defendants to
the plaintiff 154,190.54
164,245.54
Less net summary judgment costs payable by the
1,300.00
plaintiff to the defendants
Net costs and disbursements payable
by the
defendants to the plaintiff $162,945.54
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/cases/NZHC/2007/977.html