Hsu v Mahoney
[2022] NZHC 372
•8 March 2022
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 DefendantAND
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 the plaintiffs.
[9] I am satisfied that the plaintiffs have not been excessive in any respect in their claims and therefore costs at scale on a 2B basis between 16 February 2017 and 31 July 2019 of $28,209.50 are in order.
[10] The plaintiffs only seek 50 per cent of their costs for the period from the commencement of the proceedings to 5 December 2019 (being the date the plaintiffs discontinued their claims against the first and third defendants) to reflect that circumstance. That is a responsible and appropriate concession by them. Thus, I find costs of $14,582.75 are owed to the plaintiffs by BIL for this period.
2 Hsu v Mahoney [2021] NZHC 2708.
[11] Between 6 December 2019 and 4 August 2021, the parties are agreed that the plaintiffs’ costs at scale are $38,240.00.
[12] From 5 August 2021 to present, the plaintiffs’ costs at scale are $8,962.50. Again, there is a divergence in the time period calculated in respect of a memorandum which the defendants say is excessive. I do not agree that it is excessive. I therefore find the scale costs owing for this period are $8,962.50.
[13]As far as disbursements are concerned, the plaintiffs claim $45,766.01.
[14] The defendants, BIL and Mr Austin, say that the filing fee for the statement of claim should be reduced by half in recognition of the discontinuance of the claim against three of the defendants. I do not accept that is appropriate in circumstances where settlement was reached between those parties.
[15] I therefore accept the plaintiffs’ calculation as to disbursements owing. The total of disbursements is therefore $45,766.01.
[16]The total sum payable is $107,551.26.
Costs against Mr Austin
[17] Scale costs against Mr Austin are $52,185.75. Disbursements are $18,365.97. This makes a total of $70,551.72.
[18] However, the plaintiffs only had marginal success against Mr Austin, which must be reflected in a reduced award.
[19] A two-thirds reduction against scale costs and disbursements is appropriate in the circumstances. This reduction is conservative having regard to the amount awarded against Mr Austin.
[20] A two-thirds reduction results in an award of $23,517.24 for costs and disbursements.
Should there be a 25 per cent uplift from 5 December 2019?
Plaintiffs’ submissions
[21] The plaintiffs claim they are entitled to a 25 per cent uplift in costs for steps taken during these proceedings from 5 December 2019 onwards pursuant to r 14.6 of the High Court Rules 2016 (the Rules) because the general attitude and conduct of BIL, Mr Austin and BBL2 contributed unnecessarily to the time or expense of the proceeding, by:
(a)failing to comply with directions of the Court;
(b)taking and pursuing arguments which lacked merit; and
(c)failing, without reasonable justification, to admit facts and evidence or to accept legal argument.
[22] The conduct which the plaintiffs submitted gives rise to the 25 per cent uplift in costs is recorded within the various memoranda filed by the parties in these proceedings and the associated minutes of the Court. It includes, and the plaintiffs submit is characterised by:
(a)the remaining defendants unsuccessfully opposing the plaintiffs’ interlocutory application for joinder of BBL2, notwithstanding that they had no standing to do so;
(b)failing to comply with timetabling directions;
(c)abandoning their limitation defence on the eve of the trial; and
(d)unsuccessfully seeking adjournment of the proceedings on two separate occasions.
Defendants’ submissions
[23] The defendants submitted their opposition to the joinder of BBL2 was done on the basis that there was no tenable case against it.
[24] The defendants submitted that their failure to comply with directions of the Court was addressed by the Court in the 23 March 2020 minute of Associate Judge Lester. They highlighted that, pursuant to that minute, the plaintiffs were already awarded costs on a 2B basis, with a 25 per cent uplift, on the two memoranda filed by the plaintiffs which related to the defendants’ breach of the timetable.
[25] The defendants also submitted the limitation defence was abandoned by them for the precise reason of avoiding further time and cost. The abandonment was subject to a two-paragraph response in the plaintiffs’ opening submissions. The defendants submitted it had no material bearing on the time and cost of the proceeding.
[26] The defendants submitted their applications for adjournment were necessary even if ultimately unsuccessful. The first of the defendants’ two applications for adjournment was dealt with by the Court in the 2 July 2020 minute of Associate Judge Lester. A trial fixture date had not yet been allocated at that point. The defendants said the adjournment they sought was merely a request for a further case management conference in order to deal with, inter alia, issues with the plaintiffs’ discovery and briefs.
[27] The defendants’ second request for the trial to be adjourned, made by memorandum of counsel dated 10 February 2021, was triggered by counsel for the defendants’ concern that the Court timetable was not being upheld and that a common bundle was not yet finalised.
[28] The defendants submitted the plaintiffs have provided no specific instance of the alleged failure without reasonable justification to admit facts and evidence or to accept legal argument.
[29] The defendants submitted that, in light of the above, there is no basis for any costs uplift. Discrete uplift issues have already been dealt with by the Court and, outside of this, the parties’ respective positions, successes and failures, at both the case management level and the substantive level, cannot be said to be anything out of the ordinary in the cut and thrust of hard-fought High Court litigation where successes and failures are an unavoidable part of the process.
Discussion
[30] Whilst the opposition to joinder was unsuccessful, BBL2’s position was vindicated at trial and therefore an uplift in relation to that opposition is not justified.
[31] The failure to comply with the Court’s directions has already been addressed by the Court by way of an uplifted costs award. There is no appropriate basis upon which to justify a further uplift against unrelated costs.
[32] As to the limitation defence being abandoned on the eve of the trial, I agree with the defendants that it had no material bearing on the time and cost of the proceeding and no uplift is justified for this reason.
[33] The defendants’ first request for adjournment was not granted by the Court, but it represented nothing out of the ordinary in terms of case management.
[34] Whilst the defendants’ second request for adjournment was denied, it did not necessitate a further case management conference or increase the time or expense in conducting the proceeding. Indeed, no such increase is identified by the plaintiffs.
[35] As far as the alleged failure to admit facts and evidence or to accept legal argument is concerned, I find that the evidence, particularly the expert evidence, was in dispute with proper justification. Much of the factual contest surrounded the knowledge, understandings and intentions of the parties to the dispute, which was the proper subject of cross-examination and there were clearly bona fide legal arguments. The law in relation to Mr Austin’s liability alone is subject to six pages of the liability judgment.
[36] I agree with the defendants that the plaintiffs cannot discharge their onus to establish a justification for an uplift nor how BIL or Mr Austin have caused a 25 per cent increase in the time or expense across all steps in the proceeding from 5 December 2019 given that it is “only on that basis that any percentage uplift would be justified”.3
[37] The application for a 25 per cent uplift from 5 December 2019 is declined for the above reasons.
Should there be a 75 per cent uplift from 4 August 2021?
Plaintiffs’ submissions
[38] On 28 July 2021, the plaintiffs wrote to the remaining defendants without prejudice except as to costs and made an offer to settle the remaining issues within the proceeding for $64,697.98 under r 14.10 of the Rules.
[39] That offer was communicated to remain open for acceptance for seven days (or until 4 August 2021).
[40]The remaining defendants did not respond to the plaintiffs’ offer and it lapsed.
[41]The matter proceeded by way of formal proof on 6 October 2021.
[42] The plaintiffs’ offer under r 14.10 represented less than the amount that BIL was ultimately found liable to pay, and by failing to accept the plaintiffs’ offer it was submitted the remaining defendants unreasonably and unjustifiably contributed to the time and expense of the proceeding.
[43] The plaintiffs submitted they should be entitled to an uplift in costs of 75 per cent as against the remaining defendants pursuant to r 14.6(3)(b)(v) from 4 August 2021 onwards.
3 Strachan v Denbigh Property Ltd HC Palmerston North CIV-2010-454-232, 3 June 2011 at [28], citing Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2010] NZCA 400, (2010) 24 NZTC 24,500 at [165].
Defendants’ submissions
[44] The defendants submitted that the Court had already determined Mr Austin and BBL had no liability and it cannot have been unreasonable for Mr Austin and BBL to decline to accept the offer in those circumstances.
[45] Further, they submitted that, as all parties were well aware, BIL has no assets. The defendants expressed reservations as to whether the directors of BIL could have responsibly committed BIL to accepting the offer in circumstances where it did not have the means to meet the terms of the offer. In such circumstances it was submitted that BIL had “reasonable justification” not to accept the offer given its insolvency.
[46] The defendants emphasised that counsel for the plaintiffs has not cited any authority where an increased award of costs has been made against a defendant on account of a Calderbank offer where the defendant was known by the offeror to be financially incapable of meeting the terms of the offer. The defendants submitted that such a precedent would create some peculiar incentives on litigants dealing with insolvent entities and could also unfairly affect other creditors of the insolvent entity.
[47] I agree with the reasoning advanced by the defendants on this issue and decline the application for a 75 per cent uplift in these circumstances.
Should Mr Austin be jointly and severally liable for costs awarded to the plaintiffs?
Plaintiffs’ submissions
[48]The plaintiffs submitted that:
(a)the plaintiffs should be entitled to costs as against BIL and Mr Austin; and
(b)BIL and Mr Austin should be liable for such costs jointly and severally.
[49] The plaintiffs rely on the principle that, “the party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds”.4
[50] The default position is that parties liable for costs will be liable jointly and severally, except by direction of the Court.5
[51]Kós J summarised this general principle in Hong v Deliu:6
… While the default position under r 14.14 of the High Court Rules is joint and several liability among defendants, that is subject to the Court’s overriding discretion. In our view, where the case is out of the ordinary in some significant way, consideration must be given to whether to alter that burden.
…
[52] The general principle is only to be departed from where a particular case is out of the ordinary in some significant way, for example where a party has played a reduced role in proceedings (in the context of a judicial review) by abiding the decision of the Court.7 A disparity between parties’ respective levels of liability will not of itself justify a departure from this general principle.8
[53] The general principle summarised in Hong v Deliu was further expanded upon in Rochdale Precinct Society Inc v Christchurch City Council, where it was confirmed that the ultimate task of the Court is to make an assessment of overall justice as between the particular parties:9
[22] In summary, unsuccessful parties are prima facie jointly and severally liable. That rule may be varied because the ultimate task of the Court is to make an assessment of overall justice as between the particular parties, in the particular circumstances. Relevant considerations include whether and in what manner the parties participated in the proceedings, the extent to which one party was in error, and what measure of reliance was placed on the error by the other party.
4 High Court Rules, r 14.2(1)(a).
5 High Court Rules, r 14.14.
6 Hong v Deliu [2016] NZCA 75, [2016] NZAR 667 at [24] (footnote omitted).
7 Hong v Deliu, above n 3 at [24].
8 Palmer v Hewitt Building Ltd [2021] NZHC 2435 at [3]–[4].
9 Rochdale Precinct Society Inc v Christchurch City Council [2018] NZHC 1708.
[54] The plaintiffs submitted that this case is not out of the ordinary in any significant way such as to warrant a departure from the general principle.
[55] In assessing the overall justice as between the parties, the plaintiffs submitted that there are compelling reasons why the Court should not depart from the general principle:
(a)BIL and Mr Austin were found to have breached duties owed to the plaintiffs and so both substantially contributed to the harm caused to the plaintiffs;
(b)BIL and Mr Austin were found to be concurrently liable for general damages;
(c)the remaining defendants:
(i)were all represented by Rhodes & Co;
(ii)relied on the same pleadings which were drafted as single documents;
(iii)relied on the same three witnesses, including Mr Austin who gave evidence on behalf of the remaining defendants;
(iv)actively participated in the proceedings, in that none of the remaining defendants participated in a reduced or diminished capacity (for instance by making any significant admissions in respect of, or declining to defend, any aspect of the plaintiffs’ claims); and
(v)otherwise co-ordinated their defences of the proceeding such that the remaining defendants cannot be said to have operated separately or individually;
(d)the legal and factual issues as between the remaining defendants were all largely common, or otherwise overlapped significantly, and the vast majority of the evidence and hearing time was dedicated to the defective tanking issue, which was accepted by the remaining defendants, and whether it had been effectively remediated, which was disputed by all of the remaining defendants;
(e)costs (uplifted by 25 per cent) were awarded against the remaining defendants jointly by Associate Judge Lester in the minute dated 23 March 2020; and
(f)the extent of Mr Austin’s control and influence over the other remaining defendants in these proceedings should weigh in favour of joint liability for costs.
[56] The extent of control which a party has exerted over another party during proceedings, as well as the extent to which a party may stand to benefit from another party’s participation in proceedings, are both relevant considerations in respect of orders for costs as against non-parties. In S H Lock (NZ) Ltd v New Zealand Bloodstock Leasing Ltd10 the Court set out these relevant principles (referring to the Privy Council’s judgment in Dymocks Franchise Systems (NSW) Pty Ltd v Todd (No 2)):11
(a)cost orders against non-parties are exceptional in the sense that they are outside the ordinary class of cases where parties pursue claims for their own benefit and at their own expense;
(b)the ultimate question in any exceptional case is whether in all the circumstances it is just to make the order, thereby requiring a fact specific inquiry;
(c)as a general rule, third party litigation funders are only liable for costs where they not only fund proceedings but substantially control it or “at any rate [are] to benefit from them” – that is because the funder is gaining access to justice for its own purposes and is in effect the real party to litigation;
10 S H Lock (NZ) Ltd v New Zealand Bloodstock Leasing Ltd [2011] NZCA 675 at [14].
11 Dymocks Franchise Systems (NSW) Pty Ltd v Todd (No 2 [2004] UKPC 39, [2005] 1 NZLR 145 at [25].
(d)the most difficult cases are those where non-parties fund receivers or liquidators in litigation which is designed to advance the funders’ own financial interests – in that case, again as a general rule, the funder pursuing its own interests should not be able to escape without risk to liability for costs if the proceeding fails.
[57] While the plaintiffs are not seeking an order for non-party costs, they submitted that the principles outlined in the authorities in [51] are relevant to the Court’s assessment of the overall justice as between the parties and further weigh in favour of joint liability for costs as between BIL and Mr Austin.
[58] Applying the above principles to these proceedings, it was submitted that Mr Austin was both substantially in control of the remaining defendants and also stood to benefit from any success of the remaining defendants for the following reasons:
(a)Mr Austin:
(i)was one of two directors of BIL and a shareholder;
(ii)as a shareholder of BIL, Mr Austin would have benefitted had BIL either successfully defended these proceedings or succeeded in its counterclaim;
(iii)was sole director and majority shareholder of BBL2; and
(iv)gave evidence on behalf of the remaining defendants and was the only witness of fact of the remaining defendants;
(b)the remaining defendants were all represented by Rhodes & Co, relied on the same pleadings which were drafted as single documents and relied on the same three witnesses;
(c)in answer to the question, “Did Mr Austin exert a sufficient degree of control over the relevant acts or omissions [of BIL]?” the Court’s judgment noted:12
12 Hsu v Mahoney, above n 1.
[219] I find Mr Austin’s evident control of the remediation attempts, personal actions in undertaking water testing and repairs, and reassurances given to Mr Mahoney and the Tsais mean he owed a duty.
…
and;
(d)counsel for BIL has indicated that BIL will likely be liquidated and so it is unlikely to be able to fully satisfy any costs award.
[59] The plaintiffs submitted that departing from the general principle that parties liable for costs will be liable jointly and severally would enable Mr Austin to escape without risk of liability in circumstances where he was substantially in control of BIL and pursuing his own interests in the proceeding via BIL.
Defendants’ submissions
[60] The defendants submitted the plaintiffs had only marginal success against Mr Austin (general damages of $50,000) and that this must be reflected in a reduced costs award.
[61] The defendants stated that the plaintiffs failed in their primary claim against Mr Austin for remedial and consequential costs. They succeeded only in an ancillary claim for general damages. The defendants submitted that while this does not displace the plaintiffs’ success against Mr Austin it requires an appropriate reduction in costs.
[62]They relied on Weaver v Auckland Council where it was found:13
[26] In the present case, however, the only party to have succeeded by any “realistic appraisal” were the appellants. It is true that they did not succeed to the full extent of their claim but only to roughly half that extent, yet success on more limited terms is still success. We do not therefore see a proper basis upon which the usual rule that the party who fails with respect to a proceeding should pay costs to the party who succeeds should not apply. That said, it is appropriate that the costs ultimately awarded to the appellants should be reduced in accordance with r 14.7(d) because, although the appellants succeeded, the time and resources necessary for the respondent to meet ultimately unsuccessful arguments significantly increased its costs. Like Katz J, we assess that increase at around 100 per cent or roughly a doubling of effort and time. A reduction in entitlement by half is therefore appropriate.
13 Weaver v Auckland Council [2017] NZCA 330, (2017) 24 PRNZ 379.
[63] The authorities make it clear that, in considering the discount, it is necessary to make a realistic appraisal of the end result and that “[a] broad-brush approach will often be required in reducing the amount of costs that would have been appropriate had full success been achieved”.14
[64] In this case, the amounts awarded to the plaintiffs comprised net remedial costs of $140,724.42 plus $50,000 of general damages – a total of $190,724.42. Remedial costs were sought against Mr Austin but declined. The defendants submitted that the level of success the plaintiffs had against Mr Austin was therefore substantially less than in Weaver ($50,000 out of the $190,724.42 awarded amounts to 26 per cent here as opposed to success as to roughly half the extent of the claim in Weaver) and that
$50,000.00 in the context of High Court litigation is a relatively nominal sum. In addition, the core argument against Mr Austin (his liability in terms of the remedial costs of the wall/tanking) was unsuccessful and this issue comprised the majority of the time and expense of the case.
Discussion
[65] I find an appropriate award against Mr Austin, having regard to the limited success of the plaintiffs against him, is one third of the claimable scale costs.
[66] The starting point is that BIL and Mr Austin should be jointly and severally liable for costs claimed by the plaintiffs. However, r 14.14 applies only to the extent that Mr Austin is “ordered to pay costs”. The rule does not impinge on the primary analysis that must first be undertaken, namely the extent of the costs that must be paid by Mr Austin to the plaintiffs (including having regard to the failures the plaintiffs had vis-à-vis Mr Austin). He would then be jointly and severally liable for that amount with BIL.
[67] Rule 14.14 does not operate to visit BIL’s liability for all the properly assessed costs on Mr Austin, who only has a liability for some of the costs.
14 Body Corporate S73368 v Otway [2018] NZHC 1095 at [8].
[68] This is not therefore a case where the Court is being asked to make an exception to r 14.14. Mr Austin is not suggesting that some of the costs he is liable for ought to only be recoverable by the plaintiffs from BIL, nor is BIL suggesting that some of the costs it is liable for ought to only be recoverable by the plaintiffs from Mr Austin. To the extent that these two defendants have a co-existent liability for costs, that liability will be joint and several.
[69] Even if the rule could be interpreted so that Mr Austin might have a default liability for all of the plaintiffs’ costs, this case is clearly “out of the ordinary”, warranting a departure from the rule because Mr Austin successfully defended the allegation against him that he was personally liable for the remediation of the defects and this was the main allegation both in terms of quantum and procedural cost/time of the proceeding.
[70] Indeed, the plaintiffs have accepted that “the vast majority of the evidence and hearing time was dedicated to the defective tanking issue”. There is no rational basis for Mr Austin to contribute to the costs incurred by the plaintiffs in their unsuccessful attempt to prove he had liability to remedy the defects.
[71] Ultimately, in circumstances where the plaintiffs only succeeded in establishing that Mr Austin had a concurrent liability for 26 per cent of BIL’s liability, common sense dictates that Mr Austin’s liability for costs must be substantially less than that of BIL.
[72] The plaintiffs’ submission, that the extent of Mr Austin’s control over BIL and BBL2 should mean that he ought equally be liable for the costs BIL is liable to pay, amounts to suggesting he ought to act as indemnifier.
[73] Any company has to be “controlled” by someone, in this case Mr Austin as a director and shareholder. There was nothing unusual about this company structure. BIL and Mr Austin were separate parties in their own right.
[74] To visit costs which are properly only payable by BIL on Mr Austin would ignore the principles of a company being a distinct legal personality from its directors and shareholders.
[75] I refer to the plaintiffs’ submission that Mr Austin would have benefitted had BIL successfully defended the proceeding. That can generally be said of any shareholder in a closely held defendant company but it does not make that director/shareholder personally liable for the company’s costs liability.
[76] I find Mr Austin ought to be liable for scale costs down to the completion of the liability trial and reduced to one third. Mr Austin cannot rationally have any liability, partial or otherwise, for the subsequent quantum formal proof hearing given that this was to fix an amount of damages for which he was never liable.
Scale costs
Joinder of BBL2
[77] The plaintiffs submitted that having regard to all matters and the overall justice as between the parties there should be no costs consequences in respect of the plaintiffs’ joinder of BBL2.
[78] The defendants submitted BBL2 wholly succeeded in its defence and that it is entitled to an award of scale costs and disbursements against the plaintiffs. They submitted this ought to be apportioned as to one third, given the commonality of defence with BIL and Mr Austin.
[79] In the liability judgment, I found that at the time BBL2 was incorporated the defects had already occurred and that any failure in relation to remediation attempts did not cause the defects. Therefore the claim against BBL2 could never have been successful.15
[80] I see no reason to depart from the usual rule that costs follow the event. BBL2 is entitled to an award of scale costs and disbursements against the plaintiffs.
15 Hsu v Mahoney, above n 1, at [93] and [232].
[81]Scale costs are $50,528.00 and disbursements are $220.00, making a total of
$50,743.00 owing by the plaintiffs to BBL2.
[82] This ought to be apportioned as to one-third of those costs given the commonality of the defence with BIL and Mr Austin. The plaintiffs shall therefore only pay costs and disbursements to BBL2 of $16,914.33.
Result
[83]I order BIL to pay costs and disbursements to the plaintiffs in the sum of
$107,551.26.
[84] Of the $107,551.26, I order Mr Austin be jointly and severally liable to pay costs and disbursements to the plaintiffs in the sum of $23,517.24.
[85]I order the plaintiffs to pay costs and disbursements to BBL2 in the sum of
$16,914.33.
Doogue J
Solicitors:
Anthony Harper, Christchurch Rhodes & Co, Christchurch
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