Currie v Gordon - [2015] NZHC 2917

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CIV 2012-425-596 [2015] NZHC 2917

BETWEEN
DAVID ALLAN CURRIE AND

LYNETTE FRANCES CURRIE AS TRUSTEES RESPECTIVELY OF THE D A CURRIE FAMILY TRUST AND THE L F CURRIE FAMILY TRUST Plaintiffs

AND

SCOTT HAMISH GORDON First Defendant

AND

SOUTHLAND DISTRICT COUNCIL Second Defendant

AND

DAVID ALLAN CURRIE AND LYNETTE FRANCES CURRIE Third Parties

Hearing: On the papers

Counsel:

R G R Eagles for Plaintiffs and Third Parties
C S Chapman for First Defendant
P A Robertson for Second Defendant

Ruling:

20 November 2015

JUDGMENT OF SIMON FRANCE J (Costs ruling)

[1] In these proceedings the plaintiffs were unsuccessful. The claim concerned a house where the concrete slab floor had sunk within its perimeter walls. The case was brought against the builder and the Council. Costs issues have now arisen. It is
agreed 2B is the applicable scale.

CURRIE v GORDON [2015] NZHC 2917 [20 November 2015]

Increased costs

[2] The first issue concerns an application by both defendants for increased costs. By way of background I note that in my judgment I was critical of the plaintiffs’ experts on whom the case was based. The primary expert had done various tests to establish the causes of the sinking. In my view the recording of his methodology fell well below the standards expected of an expert. An example of this was confusion over a soil sample.

[3] A trial issue was whether the builder had first removed grass and top soil before using fill. The plaintiffs were reinforced in their allegation that he had not by the appearance of a sample apparently taken from the site. It was thought it came from beneath the floor and it clearly displayed a quantity of grass inconsistent with a proper scrapping having been done. However, it emerged at the trial that the sample was not from below the floor. This was symptomatic of the inadequacies of record keeping by the expert.

[4] I mention this because Mr Chapman for the first defendant raises it in connection with the claim for increased costs. He suggests that reasonable settlement offers were declined in part because of the misapprehension engendered by this error. More generally, this type of failing was pointed out, but not acknowledged. Linked to this is a failure by the plaintiffs to admit facts when required by the defendant.

[5] The final settlement offer, being a total from both defendants of $85,000, reflected only a portion of the undoubted loss that the plaintiffs had suffered as a consequence of the floor subsiding. Considered in isolation, it was not unreasonable to decline it. The issue is whether the deficiencies in the plaintiffs’ case which were shown at trial should have been appreciated at the earlier time so that declining to settle was unreasonable.

[6] The experts used by the plaintiffs were appropriately chosen. They had the right experience and qualifications. I accept that Mr Chapman requested details before the hearing of the expert’s methodology, and apparently…

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.

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Details

Case: [2015] NZHC 2917
Decision Date: 20 November 2015

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Currie v Gordon was heard. The plaintiffs, David Allan Currie and Lynette Frances Currie, trustees of the D A Currie Family Trust and the L F Currie Family Trust, brought a claim against Scott Hamish Gordon, the builder, and the Southland District Council, alleging issues with a sunken concrete slab floor of a house. The claim resulted in an unsuccessful outcome for the plaintiffs, and the focus has now shifted to the costs associated with the proceedings.

The court addressed several legal issues regarding costs, including an application for increased costs by both defendants. The plaintiffs' case was primarily based on expert evidence, but the court found significant flaws in the experts' methodology and record-keeping, which ultimately undermined the probative value of their evidence. Despite these deficiencies, the court concluded that the plaintiffs' decision not to settle earlier was not unreasonable, as the flaws in the evidence only became apparent during cross-examination.

The court also ruled on the necessity of out-of-town counsel, finding that the case did not require specialist skills beyond those of an experienced general litigator. Consequently, the costs associated with out-of-town counsel were declined. Additionally, the court determined that the plaintiffs were not liable for the expert witness travel costs of the first defendant's key expert, as the case did not necessitate an overseas expert. The court further noted that insufficient information was provided to resolve issues related to discovery and the second defendant's expert, suggesting that the parties should resolve these matters themselves.

In conclusion, the court made several rulings on the costs associated with the proceedings, declining increased costs for the defendants, denying out-of-town counsel costs, and ruling that the plaintiffs were not liable for certain expert travel expenses. The reasonableness of other disbursements was left to be determined by the Registrar.

Orders