Hearing: On the papers

Appearances:

P A Cowey and A J Summerlee for the Plaintiff
B A Scott and G M Scott-Jones for the First Defendant
R M Flinn and A W Moore for Second Defendant

Judgment:

8 February 2018

JUDGMENT OF DUNNINGHAM J

[1] In a judgment dated 4 September 2017, I dismissed virtually all aspects of the plaintiff’s claims against the defendants, the Earthquake Commission (EQC) and the plaintiff’s insurers, for the cost to repair damage to his property alleged to have been suffered in the Canterbury earthquakes.1 I reserved the issue of costs.

[2] EQC and the defendants’ insurers (referred to collectively as Offshore Market

Placements Limited (OMPL)) have now filed submissions seeking costs.

1 He v The Earthquake Commission [2017] NZHC 2136.

HE v THE EARTHQUAKE COMMISSION [2018] NZHC 67 [8 February 2018]

[3] EQC claims costs of $290,521.02, being:

(a) $102,643 for schedule costs, with a 50 per cent uplift to $153,964.50;

and

(b) $136,556.52 for disbursements.

[4] OMPL claims costs of $245,665.24, being:

(a) $77,293 for schedule costs, with a 50 per cent uplift to $115,939.50;

and

(b) $129,725.74 for disbursements.

[5] The plaintiff submits that the appropriate quantum for EQC is $138,143.87, being:

(a) $77,221 for schedule costs, with no uplift; and

(b) $60,922.87 for disbursements.

[6] The plaintiff submits that the appropriate quantum for OMPL is $126,175.93, being:

(a) $66,589 for schedule costs, with no uplift; and

(b) $59,586.93 for disbursements.

Issues

[7] There is no dispute as to the principles which apply to the determination of costs.2 The matters that the parties disagree on, and which lead to the divergence in
the quantum of costs submitted as appropriate, are:

2 As set out in Part 14 of the HC Rules.

(a) Should the defendants be entitled to costs on a 2C basis, or greater, for some items?

(b) Should there be a 50 per cent uplift of schedule costs?

(c) What steps taken by the defendants can they claim for?

(d)Should the plaintiff cover the entire cost of the defendants’ expert witnesses?

(e) Should travel costs for counsel be included?

(f) What disbursements are the defendants entitled to?

(g) Should costs be fixed now or after appeal rights are extinguished?

(h) When is the earlier wasted costs order payable? I discuss, and rule on, each of these issues in turn.

Should the defendants be entitled to costs on a 2C basis, or a greater time allocation, for some items?

EQC’s submissions

[8] EQC submits that, having regard to what happened in this case, neither Band B or C3 is sufficient to fairly reflect the additional time that was required to prepare for trial and respond to the plaintiff’s case. This is especially so given that the plaintiff’s evolving case theory, which developed…

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.

Continue reading He v Earthquake Commission

Details

AGLC: He v Earthquake Commission [2018] NZHC 67
Case: [2018] NZHC 67
Decision Date: 8 February 2018

CaseChat Overview and Summary

In He v Earthquake Commission, the plaintiff, Xiaoming He, sought to recover the cost to repair damage to his property that was alleged to have been suffered in the Canterbury earthquakes. The first defendant was the Earthquake Commission (EQC), and the second defendant was Offshore Market Placements Limited (OMPL), the plaintiff's insurers. EQC and Ompl have now filed submissions seeking costs. EQC claims costs of $290,521.02, and Ompl claims costs of $245,665.24. The plaintiff submits that the appropriate quantum for EQC is $138,143.87, and for Ompl is $126,175.93. The issues that the parties disagree on, and which lead to the divergence in the quantum of costs submitted as appropriate, include whether the defendants are entitled to costs on a 2C basis for some items, whether there should be a 50 per cent uplift of schedule costs, what steps taken by the defendants can be claimed for, and whether the plaintiff should cover the entire cost of the defendants' expert witnesses. The court found that a Band C categorisation for both the preparation of briefs and for trial preparation by the defendants was appropriate. The court also found that there should be a 50 per cent uplift on schedule costs. The court found that the plaintiff should pay the entire cost of the defendants' expert witness fees. The court found that the travel costs claimed by the defendants were reasonable and the plaintiff should cover them. The court found that costs should be fixed and paid after the plaintiff's appeal is determined or withdrawn. EQC is awarded costs of $272,458.02, and Ompl is awarded costs of $244,327.24.

Orders