Hermann v Weathertight Homes Tribunal

[2018] NZHC 2187

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2017-404-2692

[2018] NZHC 2187

UNDER

the Judicial Review Procedure Act 2016

IN THE MATTER

of an application for review of a decision made pursuant to s 112 of the Weathertight Homes Resolution Services Act 2006

BETWEEN

DAVID THOMAS HERMANN

First Applicant

HERMANN ENTERPRISES LIMITED
Second Applicant

AND

WEATHERTIGHT HOMES TRIBUNAL

First Respondent

contd: …/2

Hearing:

On the papers

Appearances:

B M Easton and C E Lane for the applicants

E S K Dalzell and D Thorne for the respondent

Judgment:

24 August 2018

JUDGMENT OF JAGOSE J

[Costs]

This judgment is delivered by me on 24 August 2018 at 1.00 pm

pursuant to r 11.5 of the High Court Rules.

.....................................................

Registrar / Deputy Registrar

Solicitors:

Grimshaw & Co, Auckland Parker & Associates, Wellington

Copy to:

Crown Law, Wellington

HERMANN v WEATHERTIGHT HOMES TRIBUNAL [2018] NZHC 2187 [24 August 2018]

JULIE MARTIN, BELINDA MARTIN and NOEL CAVE AS TRUSTEES OF THE JULIE M MARTIN TRUST and THE

BELINDA K MARTIN TRUST
Second Respondent

GRAEME JOHN EVANS
Third Respondent

BRUCE POVEY
Fourth Respondent

[1]    Mr Hermann (and his architectural company) had applied for my review of the Weathertight Homes Tribunal’s refusal to remove them as parties to an adjudication proceeding brought by the Martins. He contended the Tribunal’s decision was susceptible to administrative law remedies for its contended incorrect calculation of the Martins’ post-commencement delay; its finding Mr Hermann was ‘only’ prejudiced (but not ‘seriously or significantly’ prejudiced) by certain of the Martins’ failings; and its application of too high a threshold for assessment of the relevant considerations for removal. Ultimately, I found for Mr Hermann only on an aspect of the last ground, and directed the Tribunal to reconsider Mr Hermann’s application for removal from that perspective.1

[2]    I also took the preliminary view Mr Hermann “cannot be said to be so successful on his application as to justify an award of costs”, but invited counsel to differ, if they could not agree between themselves.2 Mr Hermann now seeks

$22,300.00 in 2B costs, plus $1,870 in disbursements. He says judicial review was necessary to achieve remission to the Tribunal, costs should follow the event, and their predictability and expedition requires an award in accordance with cited authorities and scale. In particular, Mr Hermann’s counsel, Bryan Easton, says even partial success is still success, entitling his clients to a contribution to their costs.3

[3]    The Martins predictably accept my preliminary view, and say it properly attributes success in the proceeding. But if it is not to be maintained, they alternatively propose costs calculated as on an interlocutory application – which is how I characterised Mr Hermann’s challenge, although meaning only the final decision lay in the no-costs Tribunal – amounting to $8,028.00 (plus the sought disbursements).

[4]    Mr Easton is right Mr Hermann is to be regarded as successful. That is why, if costs were to be pursued, I directed it was Mr Hermann who was entitled to them. But Mr Hermann was successful in the same measure as the Martins failed, which is at the very margin of the application for review. He did not establish any error of law on the part of the Tribunal in identifying qualifying delay or prejudice, but only in the

1      Hermann v Weathertight Homes Tribunal [2018] NZHC 1843 at [22].

2 At [23].

3      In reliance on Weaver v Auckland Council [2017] NZCA 330 at [26].

Tribunal not giving full consideration to the ultimate criterion. Although I would have invalidated the Tribunal’s decision on that last ground alone, it is by no means clear I would have granted Mr Hermann his sought removal from the adjudication. In the event, I sent that decision back to the Tribunal. Costs may be refused or reduced to reflect limited success.4

[5]    Mr Hermann’s limited success is better reflected by a 50 per cent reduction in 2B costs on his application for review. That is to acknowledge his success in invalidating the Tribunal’s decision, but his failure to obtain any more favourable replacement.

[6]    I order the Martins pay Mr Hermann costs in the amount of $11,150.00, and disbursements in the amount of $1,870.00.

—Jagose J

4      HCR 14.7; and Weaver, above n 3, at [26] and [28]-[29].