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…

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 Andrews v AHS Construction Limited

Details

AGLC: Andrews v AHS Construction Limited [2024] NZHC 1539
Case: [2024] NZHC 1539
Decision Date: 13 June 2024

CaseChat Overview and Summary

Daniel William Kelly Andrews and Glenda Lorraine Andrews have appealed against a decision made by Judge K D Kelly, with AHS Construction Limited acting as the respondent. The appeal pertains to the costs associated with the proceedings. AHS Construction Limited has sought costs for both the appeal and separate High Court proceedings involving the parties, namely the charging order proceedings. These proceedings involved AHS’s application for charging orders prior to judgment in the District Court and a subsequent application for enforcement of those orders.

The legal issues before the court included determining the appropriate basis for awarding costs in both the appeal and the charging order proceedings. AHS Construction Limited argued for an uplift in costs due to the lack of merit in the appeal and the need for a full day’s hearing. In contrast, the Andrews argued for costs on a standard 2B basis and challenged the accuracy of the calculations for the charging order proceedings. The court had to assess whether the costs sought by AHS were justified and whether there were errors in the calculation of costs for the charging order proceedings.

In assessing the costs, the court determined that while the appeal was ultimately without merit, the points raised by the Andrews were able to be dealt with expeditiously within the context of the appeal hearing. The court found no basis for increased costs beyond the 2B basis for the appeal. Regarding the charging order proceedings, the court identified errors in the calculation by AHS, specifically the inclusion of items that were not applicable. Instead, the court found that the correct items from the schedule of costs should be applied, resulting in a different total for the charging order proceedings. The court concluded that costs on a 2B basis were appropriate for both proceedings, with a corrected total for the charging order proceedings.

The final orders of the court were that Daniel William Kelly Andrews and Glenda Lorraine Andrews are to pay AHS Construction Limited $11,472 in respect of the appeal and $9,799 in respect of the charging order proceedings. This decision was made on the basis of the costs calculations provided and the court’s assessment of the merit and complexity of the proceedings.

Orders