Gauld v Waimakariri District Council

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 Defendant
Judgment:	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…