Hsu v Mahoney

[2022] NZHC 372

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2017-409-000100

[2022] NZHC 372

BETWEEN

PI-HUI BEATRICE TSAI HSU

First Plaintiff

AND

KENNETH TSAI

Second Plaintiff

AND

MARGARET ANN MAHONEY and GRAHAM PAUL MCQUEEN

First Defendants (Discontinued)

AND

BUSHNELL INVESTMENTS LIMITED

(formerly named BUSHNELL BUILDERS LIMITED)
Second Defendant

AND

CHRISTCHURCH CITY COUNCIL

Third Defendant (Discontinued)

AND

LANCE PHILIP AUSTIN

Fourth Defendant

AND

BUSHNELL BUILDERS LIMITED

Fifth Defendant

Hearing:

On the papers

Appearances:

R G Smedley and T D Grimwood for Plaintiffs

S P Rennie and A G M Whalan for Second, Fourth and Fifth Defendants

Judgment:

8 March 2022

JUDGMENT OF JUSTICE DOOGUE

(Costs)

HSU v MAHONEY (COSTS) [2022] NZHC 372 [8 March 2022]

This judgment was delivered by me on 8 March 2022 at 9.00 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Introduction

[1]                 On 1 July 2021, I issued a liability judgment in which I found Bushnell Investments Ltd (BIL) had breached:1

(a)the building contract by failing or neglecting to correct defects during the liability period;

(b)the warranty in the building contract by failing or neglecting to remedy defective tanking;

(c)its duty of care to the plaintiffs; and

(d)both the pleaded “RW Agreement” and the “CRMBA Agreement”.

[2]I also found that BIL’s counterclaim against the plaintiffs failed.

[3]I found the fourth defendant, Mr Austin:

(a)owed the plaintiffs a duty of care to ensure the remediation attempts he controlled on behalf of BIL were carried out to the standard of compliance with the Building Code;

(b)was negligent and breached the duty of care he owed to the plaintiffs; and

(c)exacerbated the emotional distress and harm suffered by the plaintiffs.

[4]I found BIL and Mr Austin were concurrently liable for general damages of

$25,000 to each of the plaintiffs.

[5]                 The plaintiffs were unsuccessful in their claim against the fifth defendant, Bushnell Builders Ltd (BBL2).

1      Hsu v Mahoney [2021] NZHC 1611.

[6]                 In a subsequent quantum judgment dated 11 October 2021, I held that BIL was liable to the plaintiffs for the net sum of $140,724.42 plus interest.2

[7]                 This judgment deals with the following issues relating to costs as between the parties:

(a)some relatively minor divergence on scale costs to be applied;

(b)whether or not the plaintiffs should be entitled to a 25 per cent uplift in costs from 5 December 2019 to 4 August 2021;

(c)whether the plaintiffs should be entitled to a 75 per cent uplift in costs from 4 August 2021;

(d)whether there should be a departure from the principle that parties liable for costs will be jointly and severally liable; and

(e)whether the plaintiffs should pay costs to BBL2.

Divergence on scale costs to be applied

[8]                 There is little between the parties as to the costs that can be claimed against BIL by the plaintiffs on a 2B basis. The small difference between them relates to the amount of time required for a limited number of memoranda filed by…