Aldridge v Holloway - [2021] NZHC 1801

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2019-409-659

[2021] NZHC 1801

BETWEEN
TIMOTHY JAMES ALDRIDGE, MICHELLE PATRICIA ALDRIDGE and ALDRIDGE TRUSTEE
SERVICES LIMITED, as trustees of the ALDRIDGE FAMILY TRUST

Plaintiffs

AND

JAMES ROBERT HOLLOWAY

First Defendant

AND

MBSS LIMITED trading as MAXRaft Second Defendant

Hearing: (Determined on the papers)

Counsel:

T J Mackenzie for Plaintiffs

N P Gillies and C A Robertson for Second Defendant

Judgment:

16 July 2021

JUDGMENT OF ASSOCIATE JUDGE LESTER

(Costs)

This judgment was delivered by me on 16 July 2021 at 12.30 pm Pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 16 July 2021

ALDRIDGE v HOLLOWAY [2021] NZHC 1801 [16 July 2021]

[1] On 14 June 2021, I delivered a judgment striking out the only cause of action against the second defendant (MAXRaft).1 The cause of action in negligence was struck out on the basis that MAXRaft did not owe the plaintiffs, the trustees of the Aldridge Family Trust (the Trust), a duty of care because the finding of a duty would have been inconsistent with the contractual structure the Trust chose to put in place.

[2]The judgment concluded by saying:2

[77] Submissions as to costs may be made but if no submissions are made within 10 working days of the date of this judgment then the costs order shall be that MAXRaft is awarded costs on a 2B basis for this application and the proceeding to date along with disbursements as fixed by the Registrar.

[3] Counsel discussed costs following the release of the judgment and, shortly before the expiry of the 10 working days, MAXRaft filed a memorandum seeking increased costs. There appears to be some suggestion by MAXRaft that because the Trust did not reply to those submissions within the 10 working days that the Trust should not be heard on the issue of costs. I do not accept that.

[4] Implicit from the fact that the Trust chose not to file submissions within the 10 working day period is it accepted the default ruling that MAXRaft would be entitled to costs on a 2B basis. While there may have been correspondence between counsel, it was not for the Trust to reply to costs submissions it had not yet received when it was content with the default ruling.

[5] Accordingly, I have considered costs with the benefit of the memoranda filed by both counsel.

MAXRaft’s costs submissions

[6]MAXRaft seeks increased costs on the grounds the Trust:

…contributed unnecessarily to the time or expense of the proceeding by:

1 Aldridge v Holloway [2021] NZHC 1382.
2 Above n 1.

(a)Taking or pursuing an unnecessary step or argument that lacks merit [r 14.6.3(b)(ii) of the High Court Rules 2016];

(b)Failing without reasonable justification to accept an offer of settlement [r 14.6(3)(b)(v)]; or

(c)Some other reason which justifies making an order for increased costs [r 14.6(3)(d)].

[7] MAXRaft’s counsel, Mr Gillies, refers to one example of a case where…

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.

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Details

Case: [2021] NZHC 1801
Decision Date: 16 July 2021

CaseChat Overview and Summary

In Aldridge v Holloway, the plaintiffs, being the trustees of the Aldridge Family Trust, sought to hold the defendants, James Robert Holloway and MBSS Limited trading as MAXRaft, liable for damages resulting from a defective concrete floor at their property. The dispute reached the High Court of New Zealand, Christchurch Registry, where the court had to determine whether the defendants owed a duty of care to the plaintiffs and whether there was sufficient merit in the plaintiffs' claims to warrant the court imposing increased costs on the plaintiffs.

The central legal issue was whether the plaintiffs' claims against MAXRaft were legally tenable, given that the court had previously struck out the negligence claim against MAXRaft. The court was also required to decide whether the plaintiffs' conduct during the litigation warranted increased or indemnity costs against them under the High Court Rules. MAXRaft argued that the plaintiffs had pursued a meritless claim and failed to accept reasonable settlement offers, thereby unnecessarily prolonging the proceedings.

Associate Judge Lester concluded that the plaintiffs' claims did not merit increased or indemnity costs. While the plaintiffs' primary claim was struck out, the court found that their arguments were supported by authority and were appropriately contested. The judge also rejected MAXRaft's contention that the plaintiffs' failure to respond to their costs submissions within the specified period meant they should be precluded from being heard on the costs issue. The judge determined that the plaintiffs' silence indicated acceptance of the default ruling on costs. Additionally, the judge approved the disbursements claimed by MAXRaft and ruled that the plaintiffs were not liable for costs associated with the costs application itself.

In conclusion, the court awarded costs to MAXRaft in accordance with the schedule provided by their counsel, including reasonable disbursements. The plaintiffs were not required to pay increased or indemnity costs, and the court did not impose any costs for the costs application itself. This decision effectively finalized the costs aspect of the litigation between the parties.

Orders