Body Corporate S73368 v Otway

[2018] NZHC 1761

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2015-470-000146

[2018] NZHC 1761

BETWEEN

BODY CORPORATE S73368

Plaintiff

AND

ROSALIND KAY OTWAY (NOW ROSALIND KAY WRIGHT) AND OLPHERT SANDFORD TRUSTEE SERVICE COMPANY LIMITED

First Defendant

PHILLIP HERBERT DORR, SHARON LESLEY DORR AND DONALD
RAYMOND PILBROW

Second Defendant

On the papers Counsel:	S Price, I Stephenson and J Scoberg-Evans for Plaintiff G Brittain QC and J Delaney for Defendants
Judgment:	17 July 2018

JUDGMENT OF WOOLFORD J

[As to Costs (No. 2)]

This judgment was delivered by me on Tuesday, 17 July 2018 at 4:15 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Counsel:            G Brittain QC, Tauranga

Solicitors:           Minter, Ellison, Rudd & Watts, Solicitors, Auckland

BODY CORPORATE S73368 v OTWAY [2018] NZHC 1761 [17 July 2018]

[1]                 I delivered a costs judgment in this case on 17 May 2018.1 Given the way costs were sought, I was unable to finally determine costs. I did not make any award but instead made several determinations, primarily regarding which party was entitled to costs at which stage of the proceeding. I further said that if the parties could not agree costs between themselves, they should file further memoranda and a decision would be made on the papers.2

[2]                 The parties have now filed a joint memorandum. They have been able to agree on costs, with one exception. The issue is whether the defendants are entitled to scale costs for the appearance of second counsel at the hearing. The claim is for 2.5 days. Counsel for the defendants, in their costs memorandum dated 16 February 2018, included costs for second counsel in a table of costs sought. But neither party made submissions on that point. I did not address it in my judgment. I do so now.

Costs for second counsel

[3]                 Costs for second counsel must specifically be allowed by the Court. Chambers J, in Nomoi Holdings Ltd v Elders Pastoral Holdings Ltd, explained the key question was:3

…whether the nature of this proceeding, given the way the trial was conducted, was such as to justify requiring the losing party to contribute to the winning party’s cost in having a junior counsel present.

[4]                 There will normally need to be some unusual feature to the litigation to warrant allowance for second counsel.4 The defendants’ main points in this regard are that the trial lasted five days, the plaintiff called two witnesses of fact and three experts, not including the expert evidence from the engineer that was handed up by consent, and that the plaintiff’s senior counsel was assisted by two juniors.

[5]                 The plaintiff, in response, says five days is not an inordinate length of time for a building defect claim. The plaintiff further points to the exchange of written

1      Body Corporate S73368 v Otway [2018] NZHC 1095.

2 At [59].

3      Nomoi Holdings Ltd v Elders Pastoral Holdings Ltd (2001) 14 PRNZ 155 (HC) at [21].

4      ZYXCBA Developments Ltd v Auckland Council [2015] NZHC 2224 at [16] and Tao v Strata Title Administration Ltd [2016] NZHC 1821 at [52].

statements of evidence in advance, the agreeing of a common bundle and the provision of a synopsis of opening submissions in advance.

[6]                 I accept the plaintiff’s submissions and decline to certify costs for second counsel. The case was not sufficiently complex to justify such certification. The arguments and evidence were known in advance. The defendants have not explained how this case demanded significant in-trial work by second counsel.

[7]                 As regards the plaintiff’s additional counsel, I do not consider that changes things. The approach does not depend on how the parties chose to conduct the litigation. It is an objective inquiry into whether the nature of the proceeding and the way in which the trial was conducted justifies certification of second counsel. Second counsel can, of course, still add real value to a party’s case without the circumstances necessary for certification. And as Chambers J said, appearing as second counsel is an important part of every barrister’s training.

Woolford J