Bonney v Cottle - [2012] NZHC 2195

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-427 [2012] NZHC 2195

BETWEEN CALVEN DENNIS BONNEY, PATRICIA ANN BONNEY, CST TRUSTEES LIMITED AND MURDOCH HALL TRUSTEE COMPANY LIMITED Plaintiffs

ANDVALERIE JOY COTTLE First Defendant

ANDJOHN GILMOUR MCLINTOCK TRADING AS J G MCLINTOCK & ASSOCIATES
Second Defendant

ANDROBERT GERARDS MEDEMBLIK Third Defendant

Hearing: (ON PAPERS) Appearances: J Mackie for Plaintiffs
G A Keene for Fourth Defendants

Judgment: 29 August 2012

JUDGMENT OF ASSOCIATE JUDGE DOOGUE [ON COSTS]

This judgment was delivered by me on
29.08.12 at 4.30 pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Counsel:
Fortune Manning, P O Box 4138, Auckland -
rob.coltman@fortunemanning.co.nz/Jason.mackie@fortunemanning.co.nz
G A Keene, Barrister, Epsom – greg.keene@xtra.co.nz
Duncan Cotterill, Auckland – d.mcgill@duncancotterill.com

BONNEY & ORS V COTTLE & ORS HC AK CIV-2010-404-427 [29 August 2012]

Introduction

[1] The fourth defendants, Robert and Loretta Boler, are seeking costs against the plaintiffs, Calven Bonney, Patricia Bonney, CST Trustees Ltd and Murdoch Hall Trustee Co Ltd. Essentially, the Bolers argue the following:

a) Their total legal bill came to approximately $52,000, inclusive of GST

and exclusive of disbursements.

b)Costs should be apportioned between the Bolers in the following manner:
i) Loretta should be entitled to 25% of the total bill ($13,000);

ii)Robert should be awarded $33,000, “based upon scale costs in the vicinity of $30,000 being apportioned 75% (approximately
$22,500), with an uplift of 50% based on an award of
increased costs”; and

iii)Combined, the Bolers are entitled to a total award in the vicinity of $45,000.

c) That the plaintiffs should face the following costs consequences:
i) indemnity costs in favour of Loretta Boler; and ii) increased costs in favour of Robert Boler.
d)That scale costs should be awarded according to their schedule of costs recoverable as located at tab 17 of their submissions.

e) That they should be awarded costs on cost submissions.

[2] The plaintiffs dispute each of the arguments. They submit that costs should not be apportioned and that neither indemnity nor increased costs should be granted because the Bolers have not shown sufficient cause to depart from scale costs. They submit that scale costs should apply, and that the Bolers are only entitled to
$9,964.00, as described in their amended schedule of costs recoverable at tab 9 of their submissions.

Background

[3] Robert and Loretta Boler were directors of Approved Building Certifiers Limited (ABC), Robert having established the company in the early 1990’s. By the mid-1990’s, other ABC employees were able to sign certifying documentation and the Bolers migrated permanently to Australia. They remained directors of ABC.

[4] In 1999 ABC was appointed to inspect and certify the building work of a house at 12 Ronaki Street, Mission Bay, Auckland. The house was owned by the plaintiffs. A code of compliance certificate was signed by the sixth defendant, Tony Heron, on behalf of ABC.

[5] The Bolers were overseas for the construction period, but Mr Boler’s signature appeared on two monthly reports forwarded by ABC to Auckland…

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 Bonney v Cottle

Details

AGLC: Bonney v Cottle [2012] NZHC 2195
Case: [2012] NZHC 2195
Decision Date: 29 August 2012

CaseChat Overview and Summary

The fourth defendants, Robert and Loretta Boler, are seeking costs against the plaintiffs, Calven Bonney, Patricia Bonney, CST Trustees Ltd and Murdoch Hall Trustee Co Ltd. The Bolers claim that they are entitled to approximately $52,000 in costs, exclusive of GST and disbursements. They argue that costs should be apportioned between them and that the plaintiffs should face the consequences of indemnity costs in favour of Loretta Boler and increased costs in favour of Robert Boler. The plaintiffs dispute each of the arguments. They submit that costs should not be apportioned and that neither indemnity nor increased costs should be granted because the Bolers have not shown sufficient cause to depart from scale costs. The plaintiffs submit that scale costs should apply and that the Bolers are only entitled to $9,964.00.

The court found that it was not unreasonable for the plaintiffs to pursue the defendants personally, given the evidence that the Bolers were directors of the company and had signed documents related to the certification process. The court also found that the Bolers had not demonstrated that the plaintiffs' conduct contributed unnecessarily to the time or expense of the proceeding in any of the ways specified in the relevant sub-rule. The court concluded that the plaintiffs' actions did not warrant an award of indemnity costs, as they were not vexatious, frivolous, improper, or unnecessary. The court also declined to make any order as to costs on the Bolers' costs application, as it considered that such an order would encourage further litigation over costs and undermine the guiding principle that the fixing of costs should be predictable and expeditious.

Orders