Ace Structural Ltd v Green - [2019] NZHC 2094

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-2555

[2019] NZHC 2094

UNDER the Judicial Review Procedure Act 2016

IN THE MATTER

of an application for judicial review

IN THE MATTER

of the Construction Contracts Act 2002

BETWEEN

ACE STRUCTURAL LIMITED

Applicant

AND

JOHN GREEN

First Respondent

FIRMA CONSTRUCTION LIMITED

Second Respondent

Hearing: On the papers

Counsel:

B Martelli for the Applicant

K Badcock for the Second Respondent

Judgment:

23 August 2019

JUDGMENT OF GORDON J

[As to costs]

This judgment was delivered by me
on 23 August 2019 at 3.00 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors: Heaney & Partners
K A Badcock, Rotorua

ACE STRUCTURAL LTD v GREEN [2019] NZHC 2094 [23 August 2019]

Introduction

[1] On 4 July 2019, I gave judgment in favour of the applicant, Ace Structural Ltd (Ace), against the respondents, John Green and Firma Construction Ltd (Firma).1

[2] The first respondent, Mr Green, adjudicated a dispute between Ace and the second respondent, Firma, in the Building Disputes Tribunal (BDT). Mr Green found in favour of Ace, but did not to award costs to Ace. Mr Green also ordered that the parties were to meet his fees in equal proportions. Ace applied to judicially review the costs decision and the quantum of Mr Green’s fees. Firma opposed the application. Mr Green was not represented at the hearing (the usual procedure for an adjudicator). He advised he would abide the decision of the Court.

[3] Ace sought an order quashing Mr Green’s findings as to costs and an order that this Court set costs for the BDT adjudication in favour of Ace. It also sought an order that Mr Green’s fees be limited to an amount considered appropriate by the Court or
$20,000.

[4] I found in favour of Ace in relation to the costs decision (on the basis of no or inadequate reasons) and made orders quashing Mr Green’s findings on costs as sought by Ace. I declined to make an order setting costs for the BDT adjudication. Instead, I remitted the matter back to Mr Green to re-determine costs with reasons to be given. I did not uphold Ace’s claim in relation to Mr Green’s fees, being a matter for appeal, not judicial review.

[5] The parties have been unable to agree on costs in this Court. Ace seeks costs and disbursements as set out in Annexure A to this judgment.2

1 Ace Structural Ltd v Green [2019] NZHC 1558.
2 There have been changes to the appropriate daily recovery rate and time allocations under schs 2 and 3 to the High Court Rules 2016. These changes apply to steps taken on or after 1 August 2019. The most recent step for which Ace seeks costs is the preparation of its memorandum on costs. That memorandum is dated 15 July 2019. Therefore, the new costs schedules do not apply to the present case.

The law

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ace Structural Ltd v Green

Details

AGLC: Ace Structural Ltd v Green [2019] NZHC 2094
Case: [2019] NZHC 2094
Decision Date: 23 August 2019

CaseChat Overview and Summary

Ace Structural Ltd v Green [2019] NZHC 2094 is a case involving an application for judicial review of a decision made by an adjudicator, John Green, in a dispute between Ace Structural Ltd and Firma Construction Ltd. The Court was required to decide whether Ace was entitled to costs in relation to the judicial review and, if so, how much. The Court also had to determine the appropriate level of costs for the judicial review, whether any reduction in those costs was warranted, and whether costs should be deferred until the adjudicator had re-determined the costs issue. The Court awarded Ace costs of $11,083.10 and disbursements of $2,124, for a total of $13,207.10. The Court found that Ace was entitled to costs as it was the successful party in the judicial review. The Court rejected the argument that costs should lie where they fell, as Firma had opposed the judicial review application. The Court determined that the appropriate classification for the preparation of written submissions and bundles was band B, not band C as claimed by Ace. The Court also found that Ace was not entitled to costs for attempting to negotiate a costs agreement and preparing a costs memorandum, as it had not completely upheld Ace's submissions on costs. The Court awarded a reduction in scale costs of 30 per cent, as Ace was unsuccessful on two issues which significantly increased Firma's costs. The Court refused to defer costs in the Court until the adjudicator had re-determined the costs issue, as Ace was successful in the judicial review regardless of the outcome in the Building Disputes Tribunal.

Orders