Fairview Park Limited v Harrison Grierson Consultants Limited HC Auckland Civ-2006-404-006588
[2011] NZHC 1330
•27 July 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2006-404-006588
BETWEEN FAIRVIEW PARK LIMITED Plaintiff
ANDHARRISON GRIERSON CONSULTANTS LIMITED First Defendant
ANDRAYMOND GRANT ULYATE AND STANLEY IAN ROBERT BORWICK ULYATE
Second Defendants
ANDHICK BROS CIVIL CONSTRUCTION LIMITED
Third Defendant
Hearing: On the Papers
Counsel: S L Abdale for Plaintiff
S Lucas for First Defendant
P M Hunter for Third Defendant
Judgment: 27 July 2011
JUDGMENT OF WHATA J ON COSTS
This judgment was delivered by Justice Whata on
27 July 2011 at 3.30 p.m., pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors:
Hesketh Henry, Private Bag 92093, Auckland
Simpson Western, DX BX 10653, Takapuna
Copy to:
S L Abdale, PO Box 46 281, Herne Bay, Auckland
FAIRVIEW PARK LIMITED V HARRISON GRIERSON CONSULTANTS LIMITED HC AK CIV-2006-404-
006588 27 July 2011
[1] In my judgment delivered on 14 June 2011 I awarded costs to the plaintiffs on a 2B basis against the first and third defendants for the timetabled attendances that commenced in May this year relating to the application that was before me and to the late exchange of evidence.
[2] The plaintiff seeks the following costs as a consequence of that order:
Against the first (one quarter) and third defendant (three quarters) upon the following basis:
(i) Schedule 2 High Court Rules: Category 2B – daily rate
$1,880.
(ii) Schedule 3 High Court Rules: Time allocations
4.10 Filing of memoranda for conference and
upon request and leave of Court: 3, 19, 30,
31 May
1.6 day
4.11 Appearance at Tele-conference on 25 May 0.3 day 4.14 Preparation for hearing as set down by
Registry
½ day
4.15 Appearance at hearing ½ day Total 2.9 days 2.9 days @ $1,880 $5,452.00 First Defendant: ¼ costs $1,363.00 Third Defendant: ¾ costs $4,089.00 $5,452.00
[3] The first defendant opposes the costs sought and submits that any order against it should be limited to costs associated with:
1. The memoranda dated 30 May 2011 (0.4 days at a daily rate of
$1,880); and
2.A half share of the costs of the mention on 13 June 2011, the other half falling to the third defendant (being 50% of 0.2 days at a daily rate of $1,880).
[4] The third defendant contends that it should be liable for half of the cost of filing the memorandum dated 3 May 2011, and the full costs of the memorandum dated 31 May 2011. In addition the third defendant says it should be liable for half the costs of the hearing. In total, this amounts to 0.85 of a day or $1,598.
Assessment
[5] My direction as to costs needs to be placed in its proper context. I was concerned at the apparent inability of the defendants to organise themselves and to strictly adhere to the orders of this Court in terms of timetabling. While delays in meeting timetables can be expected from time to time, the defendants (especially the third defendant) compounded failure upon failure by repeatedly missing deadlines set by the Court.
[6] In these circumstances, I can well understand why the plaintiff has sought costs on the various memoranda throughout May. While some of those memoranda may not be directly related to dealing with the non-compliance by the defendants, it is plainly a dominant feature in their case management.
[7] In those circumstances I am not prepared to apply the fine grained analysis sought by the two defendants. I prefer to approach costs on the basis set out by the plaintiff save in one respect. I consider that 1.6 days is perhaps excessive for dealing with timetabling and case management matters and I reduce that to one day.
[8] I also consider the split between the first defendant and third defendant to be appropriate, namely one quarter first defendant and three quarters third defendant.
[9] On that basis there shall be orders as to costs in relation to the above matters as follows:
(a) First defendant: $1,081.00
(b) Third defendant: $3,243.00
Whata J
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