Gillibrand v Swanepoel - [2018] NZHC 1376

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 Plaintiff

AND

GEORGE PETER SWANEPOEL

First Defendant

ANDREW PETER HOLGATE
Second Defendant

CHRISTIAN 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:

1 Gillibrand v Swanepoel [2017] NZHC 1209.

(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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NZHC 1376
Decision Date: 12 June 2018

CaseChat Overview and Summary

The case of Gillibrand v Swanepoel [2018] NZHC 1376 involved a dispute between Christian and Mary Gillibrand, as trustees of the Chris and Mary Gillibrand Family Trust, and George Swanepoel. The plaintiffs brought claims for negligence against Swanepoel and Andrew Holgate, seeking damages and costs. Swanepoel sought indemnity costs against the plaintiffs from 4 July 2015, the day after a Calderbank offer expired, or from 3 December 2015, the day after an increased Calderbank offer expired, and costs on a 2B basis for the preceding period. The plaintiffs accepted there should be an order for costs in favour of Swanepoel but submitted it should be on a 2B basis for the entire proceeding. The Court found that Swanepoel was entitled to indemnity costs from 4 July 2015, based on the plaintiffs' untenable allegations and their unreasonable rejection of the Calderbank offer. The Court also determined that the costs claimed by Swanepoel were reasonably incurred. The first plaintiffs succeeded in their claim against Holgate, recovering special damages and general damages. They sought costs against Holgate in a sum of $93,898.61, while Holgate contended that there should be an order for costs in his favour of $50,000. The Court ordered Holgate to pay the first plaintiffs $80,554.41 for costs and disbursements, taking into account the proportionality of costs between the defendants. In summary, the Court ordered the plaintiffs to pay Swanepoel $176,139 in costs and disbursements, and Holgate to pay the first plaintiffs $80,554.41 for costs and disbursements.

Orders