Bates v Auckland Council

[2022] NZHC 336

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-2670

[2022] NZHC 336

BETWEEN

DENESE ROSEMARY BATES

Plaintiff

AND

AUCKLAND COUNCIL

First Defendant

O’HAGAN BUILDING CONSULTANTS LIMITED

Second Defendant

On the Papers

Counsel:

T Rainey and J Heaney for the Plaintiff

S C Price, J K Wilson and R Nolan for the First Defendant A L Holloway and M A Karlsen for the Second Defendant

Judgment:

1 March 2022

JUDGMENT OF GWYN J

(Costs)

This judgment was delivered by me on 1 March 2022 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

BATES v AUCKLAND COUNCIL [2022] NZHC 336 [1 March 2022]

TABLE OF CONTENTS

Introduction  [1]

The Council’s costs claim  [8]

Duration of hearing  [9]

Joinder of third parties  [11]

Discussion  [17]

Costs for second counsel  [21]

Discussion  [23]

Increased costs  [26]

Settlement offers  [33]

Discussion  [44]

12 December 2019 offer  [50]

February 2020  [52]

Discussion  [59]

Plaintiffs’ conduct of the case  [69]

Discussion  [76]

Disbursements  [78]

Expert witnesses’ fees and expenses  [80]

Discussion  [88]

Electronic discovery  [97]

Discussion  [99]

Memoranda  [103]

Discussion  [105]

Other miscellaneous issues  [108]

O’Hagan’s costs claim  [110]

Second counsel  [113]

Commencement of a defence  [115]

Joinder of third parties  [118]

Increased costs  [122]

Disbursements  [128]

Expert witness costs  [129]

Travel and accommodation costs  [135]

Discovery support  [141]

Result  [146]

Introduction

[1]    Ms Denese Bates, the plaintiff in this proceeding, and her now deceased husband Mr David Heaney, discovered in 2005 that their house was a leaky home. They had remedial work done to the house in 2007-2009 but, in 2016, discovered damage in the sub-floor area of the house, caused by a serious moisture problem. They brought  proceedings  against  the  Auckland  Council  (the  Council)   and   O’Hagan Building Consultants Limited (O’Hagan), seeking $1.5 million as the cost to repair the house, consequential losses including the cost of alternative accommodation, storage and associated expenses (estimated to be $18,975) and general damages to compensate the plaintiffs’ nonpecuniary losses totalling $60,000, interest and costs.

[2]    In a judgment dated 29 September 2021,1 I found against Ms Bates in respect of all aspects but one of her claim against the Council. I upheld her claim that the Council had breached its duty of care in respect of its inspection obligation and ought not to have issued a code of compliance certificate for the house, but went on to find that no causative link was established between that breach and the damage the plaintiff had suffered.

[3]    I found that Ms Bates had not made out her claims of negligence against O’Hagan and that, in any event, the evidence for the plaintiff would not have established a causative link between any breach and the damage alleged.

[4]    Given my conclusions on liability, it was not necessary for me to consider the scope of any remedial work to the house or the affirmative defences raised by each of the Council and O’Hagan against Ms…