Hall's Group Limited v Rowe - [2018] NZHC 3302

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CIV-2017-483-003

[2018] NZHC 3302

BETWEEN
HALL’S GROUP LIMITED

First Plaintiff

AND

P & T TRUCKING LIMITED

Second Plaintiff

AND

GAVIN ROWE AND GWEN ROWE

Defendants

Hearing: On the papers

Counsel:

C J Shannon and A B Weal for the Plaintiffs

R M Flinn and A E Goodall for the Defendants

Judgment:

13 December 2018

JUDGMENT OF CLARK J (COSTS)

Introduction

[1] Following a collision with the defendants’ cattle which had strayed one evening onto State Highway 4, the plaintiffs sued the defendants for their negligence. In a judgment delivered on 31 October 2018 I determined the defendants breached their duty of care by failing to take adequate measures to keep their cattle secured and, by their failure, had caused the plaintiffs loss.1 The consequential damages outcome was expressed as follows:

[107] The defendants do not dispute the plaintiffs’ claims for their respective heads of loss. Accordingly, the first plaintiff is awarded $86,160.24 in compensatory damages. The second plaintiff is awarded $187,096.32 in compensatory damages. The plaintiffs succeed in their total claim of

1 Hall’s Group Ltd v Rowe [2018] NZHC 2819.

HALL’S GROUP LIMITED v ROWE & ROWE [2018] NZHC 3302 [13 December 2018]

$273,256.32, plus interest. Interest is payable at a rate of 5 per cent per annum from 22 April 2014 to the date of this judgment.

Parties’ respective positions

Plaintiffs’ position

[2] In broad terms, and on the basis the defendants unreasonably failed to accept a settlement offer, the plaintiffs seek an uplift of the costs to which, as successful parties, they are entitled.

[3] On 2 March 2018 the plaintiffs, considering their litigation risk to be minimal, offered to accept from the defendants $282,820 in full and final settlement of the claim. The offer was expressed to remain open for acceptance for seven days from 2 March 2018, following which it would be withdrawn and no longer capable of acceptance.

[4] The defendants neither accepted, nor responded to, the offer. The plaintiffs say the offer should have been accepted: when costs and disbursements are added to the judgment sum which amounts to approximately $335,000 the final judgment sum exceeds $400,000. The plaintiffs, therefore, seek an uplift of 50 per cent for all attendances incurred after the expiry of the offer on 9 March 2018.

[5]Scale costs are sought in the sum of $62,663 but uplifted by 50 per cent to

$78,050.

Defendant’s position

[6] The defendants dispute the uplift and challenge also other aspects of the costs claimed by the plaintiffs.

[7]In summary the defendants’ position is that:

(i)They had reasonable justification for not accepting the plaintiffs’ settlement offer expiring 9 March 2018 and no uplift for steps taken beyond that date is warranted.

(ii)Costs on a 2B basis are appropriate for most steps in these proceedings but some steps costs on a 2A basis are appropriate.

(iii)The plaintiffs should not be entitled to the costs of their…

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 3302
Decision Date: 13 December 2018

CaseChat Overview and Summary

The High Court of New Zealand heard an action brought by Hall's Group Limited and P & T Trucking Limited against Gavin Rowe and Gwen Rowe for damages flowing from a road accident caused by the defendants' cattle straying onto the highway. The plaintiffs claimed negligence on the part of the defendants for failing to keep their cattle secured and causing the accident. The court found the defendants liable and awarded damages to the plaintiffs, along with interest. The plaintiffs now sought an uplift in costs due to the defendants' refusal to accept a settlement offer. The defendants argued their refusal was reasonable due to the uncertainties involved in the case and the late submission of critical evidence from the plaintiffs. The court assessed the reasonableness of the refusal based on the timing of the offer, its size, the reasonable expectations of the party who refused the offer, and whether the party or parties were in a position to assess the merits of the offer when it was received. The court found the defendants' refusal to be reasonable and declined to award an uplift in costs. The plaintiffs also sought to recover costs associated with their second counsel, late evidence, and out-of-town counsel expenses. The court found that the proceeding did not justify second counsel, the defendants were entitled to have their costs of responding to the late evidence offset against the plaintiffs' costs, and the out-of-town counsel expenses were reasonable. The court disallowed certain disbursements as not being properly incurred for the purposes of the proceeding. Finally, the court declined the defendants' submission to reduce the interest award, finding the justice of the case was served by the original award.

The plaintiffs are awarded the costs set out in schedule B to Mr Shannon's submissions, subject to the following adjustments: (a) the time allocation for list of documents on discovery is reduced from 5.0 days to 2.5 days; (b) the time allocation for inspection of documents is reduced from 1.5 days to 0.5 days; (c) the appearance of second counsel is not certified; (d) the costs and disbursements of second counsel are disallowed; (e) Mr Cathcart's fee of $95.00 is disallowed; and (f) the defendants are entitled to have their costs of responding to Dr Laven's evidence offset against the plaintiffs' claim for that interlocutory step.

Orders