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Cridge v Studorp Limited

Cridge v Studorp Limited

Case [2022] NZHC 2024 16 August 2022

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2015-485-594

[2022] NZHC 2024

BETWEEN
T J CRIDGE and M A UNWIN

Plaintiffs

AND

STUDORP LIMITED

Defendant

CIV-2015-485-773

BETWEEN

K M FOWLER and S WOODHEAD
Plaintiffs

AND

STUDORP LIMITED

Defendant

JAMES HARDIE NEW ZEALAND LIMITED

Second Defendant

Hearing: 18 July 2022

Counsel:

J A Farmer QC, E S Dalzell and L K Worthing for Plaintiffs J E Hodder QC and J A McKay for Defendants

Judgment:

16 August 2022

JUDGMENT OF SIMON FRANCE J

(Costs)

Table of Contents

Paragraph No.

The litigation [3]

Common costs [8]

Introduction [8]

CRIDGE v STUDORP [2022] NZHC 2024 [16 August 2022]

Plaintiffs’ Submissions [17]

The Authorities [31]
Defendant’s submissions[45]

Decision [55]

Specific cost issues [68]

Rule 14.6(3)(a) [69]

(i)    General  [69]
(ii)     First uplift step – discovery  [77]
(iii)     Second uplift step – preparation of witness briefs  [82]
(iv)    Third uplift step – preparation for hearing  [89]

Rule 14.6(3)(b)[93]

Costs in relation to a post-hearing evidential matter [101]

Summary on costs [107]

Disbursements [112]

General [112]

Dr Lstiburek [113]
Ms Johnson [124]

Litigation support accommodation [129]

Overall proportionality [134]

Remaining issues [152]

Costs on costs [152]
Leave to apply to appeal order [153]

Summary [155]

Costs [155]

Disbursements [157]

[1] This judgment addresses a number of disputes concerning a costs claim made by James Hardie as successful defendant in this large-scale litigation. Like the litigation, the claimed costs are large – $2,341,737.75 costs plus $4,748,887.98 disbursements.

[2] The challenges involve the common and the novel. The common concerns whether uplifts to scale costs are appropriate, and if so to what extent; and whether certain large disbursements related to key witnesses are reasonable. The novel concerns a proposition that the plaintiffs’ liability should be reduced because James Hardie’s expenditure will be of value to it in what are termed parallel proceedings. This proceeding was one of three contemporaneously brought by the owners of homes clad in a James Hardie product called Harditex. All proceedings challenged the soundness of the product. The plaintiffs say the common costs expenditure incurred by James Hardie in defence of the claims should be spread across the three sets of plaintiffs.

The litigation

[3] James Hardie sold a cladding product called Harditex. It was its major fibre- cement product following the removal from the market of predecessors which contained asbestos. It was a large selling product, and was extensively used in the residential market. The product was sold as suitable as part of a weatherproof cladding system capable of giving a monolithic look. The cladding was direct-fixed to the timber framing.

[4] The litigation was a representative action on behalf of the owners of 153 properties1 which had suffered water damage. It was claimed the damage was due to a defective product and/or a defective installation system, both of which were James Hardie’s responsibility.

[5] Fibre-cement cladding is a core James Hardie product, and the litigation, which challenged the theory behind the product…

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 Cridge v Studorp Limited

Details

AGLC: Cridge v Studorp Limited [2022] NZHC 2024
Case: [2022] NZHC 2024
Decision Date: 16 August 2022

CaseChat Overview and Summary

This judgment addresses the claim for costs made by James Hardie, the successful defendant in a large-scale litigation. The litigation involved claims that a cladding product, Harditex, was defective, causing water damage to the plaintiffs' homes. The plaintiffs sought to challenge the costs claim, particularly the common costs incurred in defending against multiple proceedings. The court considered the proposal to apportion common costs across three proceedings, finding that the circumstances did not warrant such apportionment. The court granted uplifts for certain steps but declined others, and approved the disbursements with some modifications. The plaintiffs' request for further disclosure of costings was declined, and leave was given to apply to vary the costs order if necessary.

Orders