Byrne v Rose - [2017] NZHC 2886

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2015-442-059 [2017] NZHC 2886

BETWEEN
FRANK BYRNE AND CHERIE BYRNE

TRADING AS FRANK BYRNE BUILDERS

First Plaintiff

AND

FRANCISCUS PETRUS MARIA VAN GRUNSVEN AND ELIZABETH ANN VAN GRUNSVEN TRADING AS GOLDEN BAY REFRIGERATION AND AIR CONDITIONING

Second Plaintiff

AND

MARK HUME TRADING AS MANA THE PLUMBER

Third Plaintiff

AND

WAITAPU ENGINEERING LIMITED Fourth Plaintiff

AND

DAVID ROSS JACOBSEN AND ANGELA HELEN JACOBSEN TRADING AS GOLDEN BAY FENCING Fifth Plaintiff

AND

ANTHONY PAGE REILLY AND KATHLEEN MARY REILLY, FRANK BYRNE AND CHERIE BYRNE, DOS RIOS DAIRY LIMITED AND JOHN BRYNE AND DEANNA POMEROY- BYRNE TRADING AS FOUR RIVERS EARTHMOVING

Sixth Plaintiff

AND

CAROLYN ROSE Defendant

BYRNE AND BYRNE TRADING AS FRANK BYRNE BUILDERS v VAN GRUNSVEN AND ELIZABETH ANN VAN GRUNSVEN TRADING AS GOLDEN BAY REFRIGERATION AND AIR CONDITIONING [2017] NZHC 2886 [23 November 2017]

Hearing: On the papers

Counsel:

G M Downing for Plaintiffs
C Rose in Person

Judgment:

23 November 2017

JUDGMENT (COSTS) OF CLARK J

Pursuant to r 11.5 of the High Court Rules I direct the delivery time of this judgment is
2.00 pm on 23 November 2017

Introduction

[1] Carolyn Rose, the defendant, desired robotic milking machines on her farm. She arranged for the construction of a milking shed and utility rooms for new equipment, and for the installation of robots and a milk refrigeration system. This proceeding was brought by contractors involved in that work. They say Ms Rose failed to pay their invoices. Six parties sued:

(i) the first plaintiff, a building business;

(ii) the second plaintiff, a refrigeration and air-conditioning business;

(iii) the third plaintiff, a plumbing business;

(iv) the fourth plaintiff, an engineering company;

(v) the fifth plaintiff, a fencing business; and

(vi) the sixth plaintiff, an earthmoving partnership.

[2] The first plaintiff was granted summary judgment in respect of part of its claim. Ultimately the various proceedings filed in the District Court were transferred to the High Court and consolidated with the balance of the first plaintiff’s proceeding.

[3] The plaintiffs sought a total of $407,409.48 for unpaid invoices. The defendant counter-claimed for breach of contract and breach of duty of care.

[4] The defendant has settled with four of the six plaintiffs. Settlement with the second, fourth, fifth and sixth plaintiffs was concluded on 30 June 2017.1 The settlements occurred over the weekend prior to the trial which was due to commence on Monday 3 July 2017. The defendant agreed to pay to each of the settled plaintiffs
the full amount sought in their respective claims. The claims of the first and third

1 By consent, judgment was entered for the settled plaintiffs on 31 July 2017 (consent judgment).
From this point I shall refer to them as the settled plaintiffs.

plaintiffs will proceed to trial in 2018. All of the plaintiffs have been represented by the same counsel.

[5] The settled plaintiffs now seek scale costs uplifted by 50…

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 Byrne v Rose

Details

AGLC: Byrne v Rose [2017] NZHC 2886
Case: [2017] NZHC 2886
Decision Date: 23 November 2017

CaseChat Overview and Summary

Carolyn Rose, the defendant, brought an action against various contractors for unpaid invoices for construction and installation work on her farm. Six plaintiffs, including building, refrigeration, plumbing, engineering, fencing, and earthmoving businesses, brought claims totaling $407,409.48. The first plaintiff obtained summary judgment for part of its claim. The proceedings were transferred from the District Court to the High Court and consolidated. The defendant settled with four plaintiffs, agreeing to pay them the full amounts claimed. The remaining two plaintiffs' claims will proceed to trial. The settled plaintiffs seek scale costs uplifted by 50%, while the defendant argues it is premature to award costs and that they should lie where they fall.

The issues before the court were whether costs should be determined while the proceeding is ongoing, whether costs should be awarded to the settled plaintiffs, whether grounds for an uplift in costs were made out, and what level of interest should be applied. The court found that it was appropriate to determine costs at that stage, as the settled plaintiffs had succeeded in their litigation. The court rejected the defendant's argument that it was premature to award costs, as the settled plaintiffs had obtained consent judgments in their favour and were entitled to costs. The court also rejected the defendant's argument that the settled plaintiffs were not entitled to costs under the terms of settlement, stating that the sealed judgment took precedence over the correspondence. The court found that the settled plaintiffs were entitled to 25% of the total costs and disbursements, amounting to $28,317.18. The court found no basis for increased costs, as the settled plaintiffs had not established unreasonable conduct on the part of the defendant. The parties agreed that interest would be payable at 5% from the date each invoice was due until payment was made.

The court granted the settled plaintiffs' claim for costs, awarding them $28,317.18. Interest was payable at 5% from the date the invoiced sum was due until payment was made. Costs on the application were to lie where they fell.

Orders