Herron v Wallace - [2016] NZHC 2869

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-1806 [2016] NZHC 2869

BETWEEN
STUART WALTON HERRON

Plaintiff

AND

WAYNE ANDREW WALLACE First Defendant

SHADES OF AUTUMN LIMITED Second Defendant

BELMONT LIFESTYLE VILLAGES LIMITED

Third Defendant

Hearing: On the papers

Counsel:

CT Patterson and RA Dellow for plaintiff
JWJ Graham and CF Fife for defendants

Judgment:

1 December 2016

JUDGMENT OF FAIRE J

This judgment was delivered by me on 1 December 2016 at 3:30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Skeates Law Lt, Auckland (G Skeates) Chapman Tripp, Auckland

Herron v Wallace [2016] NZHC 2869 [1 December 2016]

Introduction

[1] This judgment deals finally with the question of costs following a reserved judgment I delivered on 27 May 2016. In that judgment I entered judgment for the plaintiff against the first and third defendants for $966,531.93.1 I reserved costs and gave directions covering that aspect. Memoranda in support, opposition and reply were filed.

[2] On 12 October 2016, I delivered an interim judgment dealing with several issues including the question of costs.2 Costs could not be finalised in that judgment for reasons which were set out in it. However, I gave several rulings and directions. That judgment must be read as part of the determination I make on the question of costs in this judgment.

[3] Further conferences with counsel were held. That resulted in my making an order on 2 November 2016 appointing an expert, Mr Mark Russell barrister of Christchurch, pursuant to r 9.36. I gave directions as to the material that he was to be provided with. In addition, I ordered that he investigate and provide answers to the questions set out in the schedule to a joint memorandum of counsel dated
2 November 2016. The relevant parts of that schedule that Mr Russell was required

to report on are annexed to this judgment and are marked as “Schedule A”.

[4] In anticipation of Mr Russell’s appointment I had previously ordered, on

27 October 2016, that the plaintiff was to file and serve a memorandum:

(a) …from its cost records, a schedule of costs for which indemnity cover is claimed, with that claim omitting any steps or cost items which have not been allowed (listed at paragraph [45] of the 12
October 2016 Costs Judgment), and identifying for each step:

(i) The total actual costs of plaintiff’s counsel;

(ii) The total aggregate time incurred by all plaintiff’s counsel’
and

(iii) The total time and hourly rate for each lawyer ;

1 Herron v Wallace [2016] NZHC 1129.
2 Herron v Wallace [2016] NZHC 2427 [Interim Cost Judgment].

The plaintiffs will also set out the High Court Rules Schedule 3 time and cost allowances next to the relevant step in the Costs claim.

(b) The defendants will, by 18 November 2016, file and serve a memorandum in response to the plaintiff’s memorandum and may include an adjusted value for the schedule accounting for any disputed items.

Mr…

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 Herron v Wallace

Details

AGLC: Herron v Wallace [2016] NZHC 2869
Case: [2016] NZHC 2869
Decision Date: 1 December 2016

CaseChat Overview and Summary

The High Court of New Zealand dealt with a case concerning costs following a reserved judgment, where the plaintiff, Stuart Walton Herron, had previously been awarded damages against the first and third defendants, Wayne Andrew Wallace and Belmont Lifestyle Villages Limited. The court reserved the issue of costs and subsequently appointed an expert, Mr Mark Russell, to assist in determining the appropriate costs under the indemnity clause of the Sidmouth Settlement Deed. The plaintiff sought indemnity for costs incurred, which included legal fees and disbursements, while the defendants contested certain costs as not covered by the indemnity clause. The court, after reviewing the expert’s report, assessed the reasonableness of the costs claimed by the plaintiff, excluding certain items that were not within the indemnity clause. The court concluded that the total appropriate costs, inclusive of GST, amounted to $335,662.60, subject to the plaintiff certifying that no GST input credits had been claimed. The court also ruled that the defendants were to reimburse the costs of the expert appointed by the plaintiff. The final orders were subject to the caveat regarding GST and the plaintiff's certification.

Orders