Herd v Haines - [2019] NZHC 795

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2014-488-187

[2019] NZHC 795

BETWEEN
ROBERT JOHN HERD

First Plaintiff

RHUMBA HOLDINGS LIMITED
Second Plaintiff

AND

RODNEY DAVID HAINES

and
KATHLEEN ANNE NORMAN

Defendants

Hearing: On the papers

Appearances:

J W Maassen for Plaintiffs

N W Gedye and R C Mark for Defendants

Judgment:

12 April 2019

JUDGMENT OF LANG J

[as to quantum of judgment and costs]

This judgment was delivered by me on 12 April 2019 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

HERD v HAINES [2019] NZHC 795 [12 April 2019]

[1] This judgment deals with the two issues that remain outstanding in this proceeding so far as I am concerned. They relate to the quantum for which judgment should be entered and costs in relation to all steps taken in the proceeding other than the pre-trial hearing conducted by Associate Judge Bell during the week prior to the commencement of the trial. The costs payable in relation to that hearing are to be determined by the Associate Judge.

Quantum of judgment

[2]Mr Mark for the plaintiffs seeks judgment in favour of his clients as follows:

(a)AUD$240,000 plus interest under s 87 Judicature Act 1908 from 26 September 2013 to 5 March 2019 (1986 days) at five per cent per annum amounting to AU$65,559.76 - a total of AU$306,539.76;

(b)AUD$40,000 plus interest under s 87 Judicature Act 1908 from 26 September 2013 to 5 March 2019 (1986 days) at five per cent per annum amounting to AUD$10,882.19 - a total of AUD$50,882.19;

(c)Valuation costs under clause 9.7(c) –

(i) AUD$1,200;

(ii) NZD$747.50;

(iii) Marsden Cove Boatbuilders Invoice NZD$11,053.23;

(d)Common law damages amounting to NZD$352,595.84 plus interest under s 87 Judicature Act 1908 to the date of judgment of NZD$62,446.55 – a total of NZD$415,042.39.

[3] Counsel for the defendants has not responded regarding the issue of quantum. I therefore infer that the defendants take no issue with the quantum sought by the plaintiffs.

[4] By my calculations the sum of the two figures referred to above at [2](a) is AUD$305,559.76. With that exception I consider the amounts for which the plaintiffs seek judgment correspond with the determinations contained in my substantive judgment. I therefore direct that judgment is to be entered in favour of the plaintiffs against the defendants as sought at para 9(a) to (d) of the memorandum of counsel for the plaintiffs dated 2 April 2019 but amending the figure relating to the claim for AUD$240,000 in accordance with my calculations.

Costs

[5] The plaintiffs seek costs on a category 2B basis amounting to $61,274 as itemised at para 3 of the memorandum of counsel for the plaintiffs dated 22 March 2019. The plaintiffs also seek disbursements (including expert witnesses’ fees) amounting to $49,244.63.

[6] In addition, the plaintiffs seek increased costs to reflect the late challenge by the defendants to aspects of the plaintiffs’ evidence. That issue will be…

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 Herd v Haines

Details

AGLC: Herd v Haines [2019] NZHC 795
Case: [2019] NZHC 795
Decision Date: 12 April 2019

CaseChat Overview and Summary

In the case of Herd v Haines, the High Court of New Zealand was required to determine the quantum of damages to be awarded and the costs to be borne by the parties. The plaintiffs, Robert John Herd and Rhumba Holdings Limited, sought damages and costs from the defendants, Rodney David Haines and Kathleen Anne Norman, in relation to a dispute involving contracts and obligations in Vanuatu. The defendants did not contest the quantum of damages sought by the plaintiffs, leading the court to grant judgment in favour of the plaintiffs for the amounts claimed.

The court considered the legal issues regarding the costs to be awarded to the plaintiffs. The plaintiffs sought costs on a category 2B basis, along with additional costs for the defendants' late challenge to their evidence, failure to respond to settlement offers, and unsuccessful challenge to the court's jurisdiction. The defendants argued against increased costs and the inclusion of certain expenses, such as second counsel's fees and expert witness fees. The court found that the proceeding was of average complexity and that the defendants were justified in taking the matter to trial. It also ruled that the expert witness's evidence was necessary and allowed the related disbursements.

The court concluded that costs should be awarded on a category 2B basis but denied the plaintiffs' request for increased costs due to the defendants' failure to respond to settlement offers. It allowed for the presence of second counsel at trial and permitted the disbursements for the expert witness's fees. The court also addressed the concern regarding double-counting of research costs, reserving leave for further submissions on the matter.

Orders