IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI TERENGA PARĀOA ROHE
CIV-2014-488-129
[2018] NZHC 1376
BETWEEN CHRISTIAN JOHN GILLIBRAND AND MARY CAECILIA GILLIBRAND AS TRUSTEES OF THE CHRIS AND MARY GILLIBRAND FAMILY TRUST
First Plaintiffs
CHRISTIAN JOHN GILLIBRAND
Second PlaintiffAND
GEORGE PETER SWANEPOEL
First Defendant
ANDREW PETER HOLGATE
Second DefendantCHRISTIAN JOHN GILLIBRAND AND MARY CAECILIA GILLIBRAND
Third Parties
Hearing: On the papers Appearances:
C T Patterson and H P Holland for the First and Second Plaintiffs and Third Parties
H M Twomey and S M Watson for the First Defendant Second Defendant in person
Judgment:
12 June 2018
JUDGMENT OF WOODHOUSE J (COSTS)
This judgment was delivered by me on 12 June 2018 at 2:00 p.m. pursuant to r 11.5 of the High Court Rules 2017.
Registrar/Deputy Registrar
……………………………………
GILLIBRAND v SWANEPOEL [2018] NZHC 1376 [12 June 2018]
[1] This judgment determines applications for costs following judgment on the substantive claim.1
[2] Mr and Mrs Gillibrand, as trustees, and Mr Gillibrand in his personal capacity, brought separate claims of negligence against Mr Swanepoel and Mr Holgate. There were claims for special damages ranging from (in round figures)
$119,000 to $135,000, general damages totalling $60,000, and wasted costs in a sum to be proved, but which was not proved.
[3] All of the claims against Mr Swanepoel were dismissed and Mr Swanepoel now seeks costs against the plaintiffs.
[4] Mr and Mrs Gillibrand, as trustees, succeeded in part in their claim against Mr Holgate, obtaining judgment for special damages in a sum of $63,950, plus interest, and general damages of $5,000 each. There were counterclaims by Mr Holgate and a cross-claim against Mr and Mrs Gillibrand in their personal capacities (not as trustees). Those claims were dismissed. Mr and Mrs Gillibrand seek costs against Mr Holgate.
Mr Swanepoel’s costs claim
[5] Mr Swanepoel seeks indemnity costs either from 4 July 2015, the day after a Calderbank offer from Mr Swanepoel expired, or from 3 December 2015, the day after an increased Calderbank offer expired, and costs on a 2B basis for the preceding period.
[6] The plaintiffs accept that there should be an order for costs in favour of Mr Swanepoel, but submit it should be on a 2B basis for the entire proceeding.
Indemnity costs: principles
[7]Mr Swanepoel’s claim for indemnity costs is made pursuant to the following
provisions in r 14.6 of the High Court Rules 2016:
(4)The court may order a party to pay indemnity costs if—
(a)the party has acted vexatiously, frivolously, improperly, or unnecessarily in commencing, continuing, or defending a proceeding or a step in a proceeding; or
…
(f) some other reason exists which justifies the court making an order for indemnity costs despite the principle that the determination of costs should be predictable and expeditious.
[8] The Calderbank offers made by Mr Swanepoel are an important part of the claim for indemnity costs, coming within sub-paragraphs…
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