Body Corporate 338356 v Endean - [2013] NZHC 2768

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2010-404-001415 [2013] NZHC 2768

BETWEEN BODY CORPORATE 338356
First Plaintiff
DANIEL JAMES HALASKA & ORS Second Plaintiffs

ANDWILLIAM ARTHUR ENDEAN, JOHN EDWARD ENDEAN AND CHRISTINE HEATHER ENDEAN
First Defendants
CLARK BROWN ARCHITECTS LIMITED
Second defendant

Hearing: By Memoranda

Counsel: P H Biddle for plaintiffs
M L Thornton for first defendant
J A McKay/K Kemp for fourth defendant
S R Judd for fifth defendant/second third party

Judgment: 22 October 2013

JUDGMENT OF ASSOCIATE JUDGE ABBOTT

This judgment was delivered by me on 22 October 2013 at 3.30pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:
P Biddle, Price Baker Berridge, P O Box 21463, Henderson, Waitakere
M Thornton, PO Box 91441, Victoria Street West, Auckland
J A McKay/K Kemp, Chapman Tripp Sheffield Young, PO Box 2206, Auckland
J Appelby, Ladbrook Law Limited, PO Box 37633, Parnell, Auckland

Counsel:
S Judd, Barrister, P O Box 3320, Shortland Street, Auckland

BODY CORPORATE 338356 v ENDEAN [2013] NZHC 2768 [22 October 2013]

ANDAUCKLAND CITY COUNCIL Third Defendant

ANDJAMES HARDIE NEW ZEALAND LIMITED
Fourth Defendant/First Third Party

ANDRUDNEV DOOR SYSTEMS NORTH ISLAND LIMITED
Fifth Defendant/Second Third Party

ANDGRAHAM HENRY WILLIAM WHITE Sixth Defendant

ANDBOSTICK (AUSTRALIA) PTY LIMITED Third Third Party

ANDBONDOR NEW ZEALAND LIMITED Fourth Third Party

[1] On 27 March 2013, the second third party (Rudnev) was awarded summary judgment against the plaintiffs, the first defendants and the fourth defendant, dismissing claims that all three parties had brought against it in this proceeding. As a consequence, Rudnev seeks an order for costs against all three parties.

[2] The three unsuccessful claims were part of a leaky building dispute arising out of the construction of a multi-storey building in St Pauls Street, Auckland, known as St Pauls Apartments. One of the plaintiffs’ allegations was that panels used to clad the building were installed negligently, resulting in moisture ingress. Each of the unsuccessful claims was premised upon an allegation that Rudnev had a part in the defective installation. Summary judgment was awarded against each of the claimants after a finding that there was no arguable basis for that allegation.

[3] Rudnev seeks an order for indemnity costs totalling $51,811.25 on the grounds that the plaintiffs and first defendants, and to a lesser extent the fourth defendant, caused it to incur costs unreasonably and unnecessarily by persisting with their claims (or, in the case of the fourth defendant, by bringing its claim at a later date) when Rudnev had told them, before it had taken any steps, that it had had no part in the installation of the cladding. It seeks orders apportioning its costs between the respondent parties.

[4] The three respondent parties say that there is no case for indemnity costs. The plaintiffs and the fourth defendant did not oppose the application for summary judgment. They say that no costs should be awarded against them at all because Rudnev did not incur any costs in responding to their claims additional…

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: [2013] NZHC 2768
Decision Date: 22 October 2013

CaseChat Overview and Summary

In this case, Body Corporate 338356 and others sought to hold Rudnev Door Systems North Island Limited liable for the defective installation of cladding in St Pauls Apartments in Auckland. Rudnev was awarded summary judgment on the claims against it and sought indemnity costs for the unreasonable and unnecessary persistence of the plaintiffs and others in pursuing claims against it. The court considered the circumstances under which the claims were made and whether the respondents acted reasonably in bringing and continuing their claims. The court found that while the respondents had a basis for bringing their claims, they took a risk in maintaining their claims despite explicit information from Rudnev that it had no part in the installation of the cladding. The court held that the respondents' conduct did not meet the threshold for an award of indemnity costs, but did warrant an award of increased costs. The court ordered the respondents to pay increased costs to Rudnev, with the appropriate costs allocated between the parties based on the time and resources required to respond to their claims.

The court found that the respondents should pay costs to Rudnev as follows: The first defendants are to pay costs of $18,059.25, the plaintiffs are to pay costs of $9,104.25, and the fourth defendant is to pay costs of $2,189.00, together with disbursements as fixed by the Registrar. The court did not award costs for resolving the issues over costs.

Orders