Andrews v AHS Construction Limited

[2024] NZHC 1539

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2022-470-000084

[2024] NZHC 1539

BETWEEN

DANIEL WILLIAM KELLY ANDREWS and GLENDA LORRAINE ANDREWS

Appellants

AND

AHS CONSTRUCTION LIMITED

Respondent

CIV-2019-470-000068

BETWEEN

AHS CONSTRUCTION LIMITED
(Formerly Advanced Housing Systems New Zealand Limited)

Applicant

AND

DANNY WILLIAM KELLY ANDREWS and GLENDA LORRAINE ANDREWS

Respondents

Hearing:	On the Papers at Auckland
Judgment:	13 June 2024

JUDGMENT OF POWELL J

[Costs]

This judgment was delivered by me on 13 June 2024 at 12.00 pm.

Pursuant to R 11.5 of the High Court Rules.

…………………..

Registrar/Deputy Registrar

DANIEL WILLIAM KELLY ANDREWS and GLENDA LORRAINE ANDREWS v AHS CONSTRUCTION LIMITED [2024] NZHC 1539 [13 June 2024]

[1]    On 26 April 2024, I dismissed Mr and Mrs Andrews appeal against a decision of Judge K D Kelly (“the appeal”).1 In dismissing the appeal I determined that the respondent, AHS Construction Ltd (“AHS”), was entitled to costs and set out a timetable for the parties to file submissions in the event that costs could not be agreed.2

[2]    Both parties have filed submissions as directed. As well as calculating the costs sought in respect of the appeal, Mr Elsmore for AHS has also sought costs on separate High Court proceedings involving the parties, namely AHS’s application for charging orders prior to judgment in the District Court and a subsequent application for enforcement of those orders (“the charging order proceedings”).3 There is no objection on the part of Mr and Mrs Andrews to determining costs on the charging order applications and this judgment therefore deals with the cost issues in both proceedings.

[3]    With regard to the appeal, Mr Elsmore has calculated costs on a 2B basis totalling $11,472 but submits that these should be uplifted by 50 per cent as none of the grounds of appeal had a chance of succeeding and the appeal had attempted to raise issues that were not argued in pleadings or at the District Court hearing, meaning that a full day’s hearing for the appeal was required rather than the half day set down. With regard to the charging order proceedings, Mr Elsmore has sought costs on a 2B basis in the sum of $11,950.

[4]    In response, Mr Refoy-Butler, on behalf of the appellants, submits that costs on a 2B basis are appropriate. With regard to the appeal, Mr Refoy-Butler takes no issue with AHS’s calculation of the scale costs payable but submits that there is no basis for increased costs. With regard to the charging proceedings, Mr Refoy-Butler submits that AHS’s calculation of costs for the charging order is incorrect and that the appropriate figure is $7,648.

1      Andrews v AHS Construction Ltd [2024] NZHC 937.

2 At [66].

3      See AHS Construction Ltd v Andrews [2019] NZHC 1779.

Discussion

[5]    Having reviewed the files and considered the calculations provided by counsel, I am satisfied that costs on a 2B basis are appropriate in respect of both proceedings. Although I accept in relation to the appeal that ultimately there was no merit in the points raised by Mr and Mrs Andrews and some of the particular criticisms made by Mr Elsmore are correct, this serves to justify an award of costs but not of increased costs. I note in particular that, while the hearing took longer than a half day, there was a bail appeal hearing interposed within the hearing of the appeal. In addition, I am satisfied that the issues not raised in the District Court were able to be dealt with expeditiously in the overall context of the appeal hearing. On the appeal I therefore fix costs on a 2B basis in accordance with Mr Elsmore’s calculation in the total sum of $11,472.

[6]    In relation to the charging order proceedings, I accept Mr Refoy-Butler’s submission that there is an error in Mr Elsmore’s calculation. In particular, Mr Elsmore has sought two days for “filing applications and supporting affidavits” and an additional 0.4 of a day for “filing memorandum”. These items come from the originating application section (item 37) and case management section (item 11) of sch 3 of the High Court Rules 2016. Neither of these are applicable. However, I disagree with Mr Refoy-Butler that these should be replaced by “filing interlocutory application” (item 22). Instead, it is apparent the appropriate part of sch 3 are items

60 and 62 being respectively “charging order with application, including any unopposed order” and “other enforcement process”. These provide for the initial without notice application by AHS and its subsequent application for enforcement. Each of these steps amounts to 0.5 of a day. I also consider that items 28 and 29 are appropriate, being “obtaining judgment without appearance” (0.3 days) and “sealing order for judgment” (0.2 days). Taking these items together I am therefore satisfied that with regard to the charging order proceedings total costs should be paid by Mr and Mrs Andrews in the sum of $9,799.

Decision

[7]Mr and Mrs Andrews are to pay the following costs to AHS:

(a)$11,472 in respect of the appeal; and

(b)$9,799 in respect of the charging order proceedings.

Powell J