Body Corporate 406198 & Ors; s; And; Argon Construction Limited; ; Auckland Council

[2024] NZHC 3791

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-001772

[2024] NZHC 3791

BETWEEN

BODY CORPORATE 406198 & ORS

Plaintiffs

AND

ARGON CONSTRUCTION LIMITED

First Defendant

AUCKLAND COUNCIL

Second Defendant

Hearing:

On the papers

Counsel:

D R Bigio KC, R D Butler, S C I Jeffs, I J Stephenson, R J H Scott, H Chung and J C Wedlake for Plaintiffs

W A McCartney and D A Cowan for First Defendant
S C Price, M J Ferrier, C M Fairnie and S H Ji for Second Defendant

Judgment:

12 December 2024

JUDGMENT OF ANDREW J

[Application for correction]

This judgment was delivered by Justice Andrew on 12 December 2024 at 4.00 pm

pursuant to r 11.5 of the High Court Rules 2016 Registrar / Deputy Registrar

Date ……………………..

BODY CORPORATE 406198 & ORS v ARGON CONSTRUCTION LTD & OR [2024] NZHC 3791 [12

December 2024]

Introduction

[1]                 The plaintiffs apply for orders  that  my  damages  and  costs  judgment  of  20 February 20241 be corrected by amending the $4,974,830.11 figure to

$5,344,816.55 so as to include from Mr Brock’s estimate “Item 8.00 Off-site Overheads and Profit” at 8 per cent (Item 8.00). The application is based on r 11.10 of the High Court Rules 2016 (correction of accidental slip or omission).

[2]The grounds for the correction order sought are as follows:

(a)the $4,974,830.11 figure is an error arising from an accidental omission of “Item 8.00 Off-site Overheads and Profit” from the calculations in the plaintiffs’ submissions dated 24 November 2023 and the plaintiffs’ reply submissions dated 13 December 2023;

(b)the damages judgment did not truly express what was decided and intended in that there was no decision or intention to deduct Item 8.00 of Mr Brock’s estimate from the damages recoverable by the plaintiffs; and

(c)there was a clear mistake in the plaintiffs’ calculation which has a marked effect on the outcome, but does not affect the Court’s reasoning.

[3]                 The application is supported by an affirmation from one of the plaintiff’s solicitors sworn 11 March 2024. The solicitor states that she “accidentally omitted” from Mr Brock’s estimate “Item 8.00 Off-site Overheads and Profit” at 8 per cent when preparing the calculations in the plaintiff’s damages submissions and reply submissions.

[4]                 The application for correction is opposed by the defendants, Argon Construction Ltd and the Auckland Council. They say that r 11.10 is not available to correct an error in pre-judgment submissions and that my judgment itself accurately reflects what was decided and intended by the Court.

1      Body Corporate 406198 & Ors v Argon Construction Ltd [2024] NZHC 237.

Relevant legal principles

[5]Rule 11.10(1) of the High Court Rules 2016 provides:

Correction of accidental slip or omission

(1)       A judgment or order may be corrected by the court or the Registrar who made it, if it—

(a)contains a clerical mistake or an error arising from an accidental slip or omission, whether or not made by an officer of the court; or

(b)is drawn up so that it does not express what was decided and intended.

[6]                 In the Court of Appeal decision, Enright v Newton, Courtney J cited the following passage from the High Court of Australia in Gould v Vaggelas, concerning the equivalent Australian rule:2

Recent decisions of this Court provide illustrations of the injustice that may be caused to litigants by the inadvertence of counsel and the willingness of the court in appropriate circumstances to grant a remedy … Nevertheless, the jurisdiction is one to be exercised sparingly, lest it encourage carelessness by a party’s legal representative and expose to risk the public interest in finality of litigation.

[7]                 Courtney J then observed that the purpose of the rule (r 11.10) is to avoid hardship to litigants caused by inadvertent errors and omissions, whether by the court or by counsel. In that case the appellant, who succeeded in overturning the High Court’s strike out decision, had omitted to appeal the High Court costs order against him. In allowing the correction, the Court of Appeal noted that had the matter of costs order been raised there was no doubt that it would have been set aside.

Analysis and decision

[8]                 I agree with the submissions of the plaintiffs that there was an accidental omission here.

[9]                 It is not in dispute that Item 8.00 formed part of Mr Brock’s calculation. I found Mr Brock’s calculation to be the appropriate starting point for the calculation of remedial quantum.

2 Enright v Newton [2021] NZCA 157 at [14] citing Gould v Vaggelas (1985) 157 CLR 215 at 274– 275.

[10]            This is not a case of the plaintiffs seeking to add evidence that was not before the Court or seeking a correction that would require further evidence.

[11]            Item 8.00 was accidentally omitted by counsel for the plaintiffs after trial, after the main judgment, and in the course of preparing further submissions on damages. All of the necessary evidence is before the Court and no further findings are required.

[12]            Had Item 8.00 been included in the calculations in the plaintiffs’ submissions and the reply submissions, there would have been no good reason in terms of my overall findings to disallow Item 8.00. On the contrary, it would have been consistent with those findings to have allowed for it.

[13]            I reject the contention of the defendants that the present case is analogous to FL Trustees 2012 Ltd v Moore,3 where Fitzgerald J declined to correct the judgment on the grounds that it reflected precisely the content and subject matter of the original application.

[14]            I did not intend to exclude Item 8.00 from my judgment. In that main judgment, I determined that Mr Brock’s calculation should be the starting point (which should include all 11 items) except to the extent of any adjustment. The figure of

$4,974,830.11 does not accurately reflect those findings.

[15]            I accept that the discretion under r 11.10 is to be exercised sparingly. However, in this case, it would be manifestly unjust not to do so. I would also note that in complicated lengthy litigation of this kind, mistakes as to damages calculations (especially when prepared by a solicitor on the basis of the opposing party’s witness) are not altogether surprising. Some latitude and understanding needs to be adopted.

[16]            I accept the submission of the plaintiffs that the inclusion of Item 8.00 will avoid hardship to the plaintiffs in circumstances where:

(a)all the quantity surveyor experts allowed for offsite overheads and profit (also referred to as “margin”);

3      FL Trustees 2012 Ltd v Moore [2021] NZHC 763.

(b)the value of Item 8.00 is significant (8 per cent of a sub-total of over

$3,500,000 with consequential increases to “Item 10.00 consent costs” and “Item 11.00 project contingency”); and

(c)the plaintiffs have acted promptly in raising the issue with the defendants and in bringing the application.4

[17]For all these reasons I grant the application.

Result

[18]            I grant the plaintiffs’ application under r 11.10 for correction of my judgment. The amount of damages awarded for remedial costs in the damages judgment is to include from Mr Brock’s estimate “Item 8.00 off-site overheads and profit” (Item 8.00 at 8 per cent). The calculations I adopt are those set out at [32] of the plaintiffs’ submissions in support of the interlocutory application for correction of judgment dated 7 May 2024 and as set out in the affirmation of Helen Chung, solicitor, affirmed 11 March 2024.

[19]There is no order for costs in relation to the present application.

Andrew J

4      The Court apologises to the parties for having overlooked the application. That is the reason for the lengthy delay in issuing this judgment.