Legal Research
Cases
Jerard v Auckland Council

Jerard v Auckland Council

Case [2015] NZHC 3357 21 December 2015

Civil Litigation & Procedure

No judgment structure available for this case.

Type to search within this case.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-7422 [2015] NZHC 3357

BETWEEN
KENNETH JAMES JERARD AND

LINDA IRENE LEADER Plaintiffs

AND

AUCKLAND COUNCIL First Defendant

BRUCE WARREN PAXTON AND AMANDA SARAH PAXTON Second Defendants

BROWN BROTHERS BUILDERS LIMITED

First Third Party

IAN HUTCHINSON CONSULTANTS LIMITED

Second Third Party

BRETT CONWAY BROWN Third Third Party

MATTHEW TICKLE Fourth Third Party

POLE SPECIALISTS LIMITED Fifth Third Party

DEAN HENSHAW Sixth Third Party

SHORE PLUMBING LIMITED Seventh Third Party

Hearing: On the papers

Judgment:

21 December 2015

JERARD & LEADER v AUCKLAND COUNCIL & ORS [2015] NZHC 3357 [21 December 2015]

COSTS JUDGMENT OF DUFFY J

This judgment was delivered by me on 21 December 2015 at 3.30 pm pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar

[1] On 22 July 2015 I delivered a judgment in which I dismissed the application of the second defendants, Mr and Mrs Paxton, to set aside a judgment given by Lang J on 10 October 2014 after a formal proof hearing. In doing so I found that the Paxtons had no excuse for their failure to defend the proceedings brought against them and that they did not have a substantial ground of defence.1

[2] As part of their case for setting aside the judgment against them the Paxtons attempted to attribute responsibility for their failure to defend the proceedings to their then counsel Mr McCartney, who they contended had failed to take proper steps to protect their position and to advise them accordingly. I rejected that argument.

[3] Some time before the hearing Mr McCartney became aware of the Paxtons’ criticism of his conduct of their defence. He engaged counsel, Mr Parmenter, who appeared on 12 February 2015 with counsel for the parties’ before Hinton J and advised the Judge that Mr McCartney wanted to clarify the advice that he had given to the Paxtons. Hinton J’s minute of 12 February 2015 records:

[3] By consent of all counsel, including Mr Parmenter, I direct that William Alexander McCartney file an affidavit as to the advice he gave to the second defendants in this proceeding, by 26 February 2015

[4] Following Hinton J’s direction Mr McCartney filed a substantial affidavit with exhibits which disclosed fully the advice that he had given to the Paxtons and the steps that he had taken in their defence. Whilst Hinton J’s minute refers to Mr McCartney appearing before her represented by Mr Parmenter and refers to Mr McCartney as an interested party, I can find no formal application on the Court file which shows that Mr McCartney made a formal application seeking to be joined as an intervener or interested party pursuant to r 4.56 of the High Court Rules.

[5] In the present case Mr McCartney did not address the Court. He did no more than file two affidavits, the evidence of which was supportive of the plaintiffs’ case. Since he was counsel for the Paxtons, the information he held regarding the advice he…

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 Jerard v Auckland Council

Details

AGLC: Jerard v Auckland Council [2015] NZHC 3357
Case: [2015] NZHC 3357
Decision Date: 21 December 2015

CaseChat Overview and Summary

Kenneth James Jerard and Linda Irene Leader brought an action against the Auckland Council, Bruce Warren Paxton and Amanda Sarah Paxton. The plaintiffs sought damages for the Council’s failure to warn them about the risks associated with the design of their house, which was constructed by Brown Brothers Builders Limited. The Paxtons, the architects and builders, were also named as defendants. The Paxtons sought to set aside the judgment, claiming that their counsel, William Alexander McCartney, had failed to advise them properly and protect their position. The court dismissed the Paxtons’ application and found that they had no excuse for their failure to defend the proceedings and that they did not have a substantial ground of defence. Mr McCartney sought indemnity costs against the Paxtons, claiming that he was an interested party in the proceedings who was entitled to an award of costs. The Paxtons opposed the application for costs, arguing that the two parties had already settled the issue of costs. The court found that it had jurisdiction to award costs against a non-party, but that indemnity costs were not appropriate in this case. Instead, the court awarded 2B costs in favour of Mr McCartney against the Paxtons of $4,378.00.

The court’s decision in Jerard v Auckland Council involved several legal issues. Firstly, the court had to determine whether it had jurisdiction to award costs against a non-party, and whether indemnity costs were appropriate in this case. Secondly, the court had to consider whether the Paxtons’ application to set aside the judgment was without merit and whether they had a substantial ground of defence. Thirdly, the court had to assess whether Mr McCartney was an interested party in the proceedings who was entitled to an award of costs. The court found that it had jurisdiction to award costs against a non-party, but that indemnity costs were not appropriate in this case. The court also found that the Paxtons’ application to set aside the judgment was without merit and that they did not have a substantial ground of defence. Finally, the court found that Mr McCartney was an interested party in the proceedings who was entitled to an award of costs, but that 2B costs were more appropriate than indemnity costs.

The court’s reasoning in Jerard v Auckland Council was based on several factors. Firstly, the court found that it had jurisdiction to award costs against a non-party, based on the principles established in previous cases such as Erwood v Maxted and Mana Property Trustee Ltd v James Developments Ltd. Secondly, the court found that indemnity costs were not appropriate in this case, as Mr McCartney had a personal interest in filing the affidavit and was anxious to protect his reputation. Thirdly, the court found that the Paxtons’ application to set aside the judgment was without merit and that they did not have a substantial ground of defence. Fourthly, the court found that Mr McCartney was an interested party in the proceedings who was entitled to an award of costs, based on his role in preparing the affidavit and the steps he had taken to advance the Paxtons’ defence. Finally, the court awarded 2B costs in favour of Mr McCartney against the Paxtons of $4,378.00, based on the time and effort he had spent preparing the affidavit.

In conclusion, the court in Jerard v Auckland Council found that it had jurisdiction to award costs against a non-party, but that indemnity costs were not appropriate in this case. The court also found that the Paxtons’ application to set aside the judgment was without merit and that they did not have a substantial ground of defence. Finally, the court found that Mr McCartney was an interested party in the proceedings who was entitled to an award of costs, and awarded 2B costs in favour of Mr McCartney against the Paxtons of $4,378.00. The court’s decision provides guidance on the circumstances in which a non-party may be entitled to an award of costs, and the factors that should be considered when determining the appropriate amount of costs.

Orders