IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV 2011-409-000392 [2014] NZHC 956
BETWEEN KEITH FRASER GAULD
Plaintiff
AND
WAIMAKARIRI DISTRICT COUNCIL Defendant
Hearing: 2 April 2014 Counsel:
K W Clay for Plaintiff
F P Divich and A C Harpur for DefendantJudgment:
8 May 2014
JUDGMENT AS TO COSTS OF WHATA J
[1] In my judgment on this matter, I made an order for damages in favour of the plaintiff in the sum of $6,913.39 plus interest from the date of filing of the proceeding. My then tentative view was that Mr Gauld should be entitled to costs on a 2B basis, less 25% to reflect the Council’s partial success in the proceedings. In particular I found that the Council had established contributory negligence. I invited submissions on costs if they could not be agreed.
[2] I received memorandum of counsel for both parties seeking costs. Ms Divich for the defendant refers to a Calderbank offer made on 26 March 2013. In that offer, the Council proposed to pay the plaintiff $50,000. The letter provided a detailed breakdown as to the basis for the offer. The Council is to be commended for the care taken in recording the basis for settlement. An evidential issue then arose as to whether or not the offer exceeded the judgment obtained by the plaintiffs. Further memoranda were therefore sought from counsel and the matter was set down for
argument.
GAULD v WAIMAKARIRI DISTRICT COUNCIL [2014] NZHC 956 [8 May 2014]
[3] It will be evident that the key issue is whether or not the Calderbank offer had the effect of disentitling Mr Gauld to costs in full or in part and/or entitling the Council to its costs from the date of the offer.
Summary of the parties’ positions
[4] Ms Divich and Ms Harpur helpfully produced a schedule of the respective costs assessments both in relation to scale costs and disbursements. A copy of that schedule is attached for ease of reference. The parties accept that this is an accurate reflection of the respective claims.
[5] I now turn to examine the parties’ position on liability.
Plaintiff ’s claims
[6] The plaintiff seeks costs on a scale 2B basis, with a reduction of 25% as suggested in my judgment, but applying only to costs and not disbursements.
[7] Mr Gauld submits that the plaintiff should be entitled to its scale costs on the basis that:
(a) It was successful on the critical issue of liability; (b) The Calderbank offer was feint;
(c) The Calderbank offer did not exceed the amount of the judgment obtained by the plaintiff, inclusive of a full award of costs and disbursements;
(d) In any event, the decision of the plaintiff to continue with the proceedings was reasonable in the circumstances and he ought not to be penalised for that decision.
Defendant’s position on costs
[8] The Council seeks its costs on a scale 2B basis in the High Court and disbursements from the plaintiff. The costs sought…
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- Case
- [2014] NZHC 956
- Decision Date
CaseChat Overview and Summary
The primary legal issue was whether the Calderbank offer made by the council disentitled Gauld to costs in full or in part and/or entitled the council to its costs from the date of the offer. The plaintiff sought costs on a scale 2B basis, with a reduction of 25%, while the council sought its costs on a scale 2B basis and disbursements from the plaintiff. The court considered the parties' positions on liability and the effect of the Calderbank offer.
The court assessed the amount of the judgment obtained by Gauld against the council's settlement offer. It agreed with the defendant's submissions that the quantum of the judgment must include any costs order that would ordinarily follow together with any disbursements to the conclusion of the hearing. The court found that the council's offer triggered rule 14.11(3) and certainly rule 14.11(4). However, the court resolved that Gauld should continue to receive at least some of his costs in these proceedings, guided by the Court of Appeal in Packing In Limited (In Liq) formerly known as Bond Cargo Limited v Chilcott. The court considered the complexity of the case, the public law element, and the public benefit of the proceedings against which success and the ultimate question of costs should be measured. Gauld was entitled to costs on a 2B basis together with disbursements, but the discount was increased to 35 percent.
The court made no further award of costs, as the process was a necessary incident of the primary hearing process, and the submissions for both parties were fairly made. The parties were left to agree on the exact quantum of costs.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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