Donovan Drainage & Earthmoving Limited v Halls Earthworks Limited HC Auckland Civ-2010-404-000029

[2011] NZHC 1540

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-000029

BETWEEN  DONOVAN DRAINAGE & EARTHMOVING LIMITED Appellant

ANDHALLS EARTHWORKS LIMITED Respondent

Hearing:         On the papers

Judgment:      11 November 2011 at 3:30 PM

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 11 November 2011 at 3:30 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date……………………….

Solicitors:           Urlich McNab Kilpatrick, P O Box 633, Whangarei

Fax: [phone]
David Shanahan, P O Box 1801, Whangarei 0140
Fax: [phone]

Counsel:             D W Grove, P O Box 130 Shortland Street, Auckland 1140

Fax: [phone]
R J Bowden, P O Box 1862, Whangarei 0140

Fax: [phone]

DONOVAN DRAINAGE & EARTHMOVING LTD V HALLS EARTHWORKS LTD HC AK CIV-2010-404-

000029 11 November 2011

[1]      In my judgment 2 June 2011 I dismissed applications by both parties for leave to appeal my substantive decision 10 November 2010.  The respondent, Halls Earthworks Ltd, seeks costs on that application.  Donovan Drainage submits that no costs should be awarded to either party.

[2]      Donovan proposed two issues as justifying a second appeal.  The first, which related to the correct approach to the interpretation of contractual documents, had no merit at all.   The second concerned Halls’ expert witness who had negotiated a success fee prior to giving evidence.   On appeal I rejected Donovan’s submission that the judgment should have been set aside on this basis alone.  I did so because the outcome would have been the same even without the evidence but I did exclude the expert’s fee from the disbursements Halls was entitled to claim.

[3]      Although it was not raised during the appeal hearing, Donovan sought leave to appeal on the basis that because Halls was in liquidation the unsecured creditors (of which Donovan is one) would have to meet whatever fee is paid to the expert by the liquidators.  As a result, Donovan would, through this circuitous route, find itself meeting the expert’s fee.

[4]      This point was not argued on the appeal.  However, because the outcome of the case would have been the same even without the expert’s evidence I did not consider that a second appeal on that point alone was justified.  Nevertheless, this aspect was disturbing and did not reflect well on Halls.  For that reason I decline to

make any award.  Costs on the applications are to be where they fall.

P Courtney J