Anderson v DeMarco - [2020] NZHC 3490

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-622

[2020] NZHC 3490

BETWEEN NORMAN HUGH ANDERSON AND REBECCA ALICE CARRASCO
Plaintiffs

AND

EUGENE JOHN DE MARCO

Defendant

Hearing: On the papers

Appearances:

E S Dalzell, M B Lambert and D Viatos for the Plaintiffs G D R Shand and P H Biddle for the Defendant

Judgment:

21 December 2020

JUDGMENT (NO 2) OF COOKE J

(Finalisation of quantum and costs)

[1] By judgment dated 11 November 2020 in these proceedings I upheld the plaintiffs’ claims and awarded $132,123 as an interim judgment.1 The award of damages was only an interim award because there was one aspect of the claim for damages that I wanted to ensure was not covered by the principle that legal expenditure incurred in the proceedings themselves are not recoverable as damages.2 I indicated that that issue would be addressed at the same time as the question of costs, and gave directions for the filing of memoranda in relation to costs.3 This judgment deals with both matters, and also addresses an application for a stay that has been filed by Mr De Marco.

1 Anderson v De Marco [2020] NZHC 2979.
2 At [108].
3 At [125]–[126].

ANDERSON v EUGENE JOHN DE MARCO [2020] NZHC 3490 [21 December 2020]

Legal expenses

[2] In the principal judgment I determined that the plaintiffs could claim for expenses as part of their damages claim as compensation under s 43 of the Contract and Commercial Law Act 2017. When doing so I listed the expenses claimed and said:

[107] There was little challenge to these matters at trial, although Mr Anderson confirmed in cross-examination that the costs as set out in his evidence had been paid, and Mr Shand submitted in closing that the claim costs were unreasonable and too high.

[108] In the absence of any more direct challenge, or reasons why the claimed costs and expenditure are not reasonable, they seem to me to be appropriate and I allow them with one qualification. The qualification relates to the legal fees for Parker & Associates which go through to 10 August 2018, and expressly include disbursements for filing the statement of claim and an interlocutory application. These proceedings were commenced on 10 August 2018. Whilst a plaintiff is entitled to claim legal costs as damages/compensation, it is not appropriate to include within that claim legal expenditure incurred in the proceedings themselves.4 That expenditure is to be addressed by the costs award in this proceeding. That difficulty is illustrated by the plaintiffs claiming the filing fees for originally filing the proceeding, and bringing an interlocutory application, are recoverable as damages.

[109] In the circumstances, and notwithstanding that Mr Shand did not directly address this question, I currently exclude the amount of $38,851.66 from the compensation allowed. I act under r 11.2(a) of the High Court Rules 2016 and currently award the plaintiffs $132,123 as an interim judgment. The question of…

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 Anderson v DeMarco

Details

AGLC: Anderson v DeMarco [2020] NZHC 3490
Case: [2020] NZHC 3490
Decision Date: 21 December 2020

CaseChat Overview and Summary

In Anderson v DeMarco, the plaintiffs, Norman Hugh Anderson and Rebecca Alice Carrasco, sued the defendant, Eugene John DeMarco, for damages and costs related to a dispute over a property transaction. The High Court of New Zealand, Wellington Registry, presided over the case, with the judgment being delivered on 21 December 2020. The primary judgment had already been given, and the court was now dealing with the finalisation of quantum and costs, as well as a stay application by the defendant.

The primary legal issues before the court were whether the plaintiffs were entitled to claim compensation for legal expenses as part of their damages claim, and if so, to what extent. Additionally, the court had to determine the appropriate scale for awarding costs and assess the defendant's stay application.

The court ruled that the plaintiffs could claim expenses as part of their damages claim under the Contract and Commercial Law Act 2017, but the legal fees incurred in the proceedings themselves were not recoverable as damages. The court initially excluded $38,851.66 from the compensation allowed. However, after reviewing the plaintiffs' memorandum and affidavit, the court allowed the plaintiffs' damages claim to be increased by $38,313.46, after deducting $538.20 for legal research that could be said to relate to the proceedings.

Regarding the costs, the court determined that despite the case being eligible for the District Court, it was appropriate to award costs on the High Court scale due to the complexity of the issues and the need for prompt and efficient resolution of the dispute.

Finally, the court addressed the defendant's stay application, stating that the judgment should not be executed unless and until the application for a stay was determined. The defendant was required to file and serve his written submissions in support of his application, and the plaintiffs' opposition including submissions in opposition were to be filed and served by a specified date. The court would then indicate how the matter was to be dealt with.

Orders