Johnson v Auckland Council - [2013] NZHC 1148

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-837 [2013] NZHC 1148

BETWEEN ROSS WAYNE JOHNSON, LINDA JEAN JOHNSON AND FIRST INVESTMENT TRUST LIMITED
Plaintiffs

ANDAUCKLAND COUNCIL Defendant

AND STEPHEN ROY JOHNSTON

Hearing: On the papers at 2 May 2013

Counsel: G B Lewis and L V Chapman for the Plaintiffs S A Thodey and K M Parker for the Defendant I J Thain and C Stacey for the Third Party

Judgment: 20 May 2013

JUDGMENT OF WOODHOUSE J (Costs)

This judgment was delivered by me on 20 May 2013 at 11:30 a.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar
……………………………………

Solicitors:
Mr G B Lewis / Ms L V Chapman, Grimshaws, Solicitors, Auckland
Mrs S A Thodey / Ms K M Parker, Heaney & Co., Solicitors, Auckland
Mr I Thain / Ms C Stacey, DLA Phillips Fox, Solicitors, Auckland

JOHNSON V AUCKLAND COUNCIL HC AK CIV-2010-404-837 [20 May 2013]

[1] This judgment determines costs issues arising out of the substantive judgment.1

[2] The broad positions of the parties on costs are as follows:

(a) The plaintiffs seek an order for costs against the defendant, generally on a 2B basis. The essence of the plaintiffs’ claim for costs is a submission that they succeeded.

(b)The defendant Council contends that, as between the plaintiffs and the defendant, there should be no order for costs. The reasons advanced are that there was a settlement offer before the hearing for a sum well in excess of the judgment sum, the plaintiffs succeeded on quantum as to only 30% because of the contributory negligence finding against them, and the plaintiffs did not succeed on the substantial issues that went to a hearing.

(c) The third party, Mr Johnston, having successfully defended the Council’s claim, seeks costs from the Council. The Council contends that Mr Johnston’s costs should be paid by the plaintiffs. That proposition is resisted by the plaintiffs.

The plaintiffs’ claims and the result

[3] The reason for the fundamental difference between the plaintiffs and defendant on the question of costs may be seen from a description of the background to the claim between the plaintiffs and the defendant and the result. This is conveniently provided by reproducing the introduction to the substantive judgment
in respect of the plaintiffs’ claim:

1 Johnson v Auckland Council [2013] NZHC 165.

[1] In April 2009 the plaintiffs purchased a residential property to be occupied as the home of the first two plaintiffs, Mr and Mrs Johnson, and their children.2

[2] Substantial alterations to the house had been carried out before the property was purchased by the plaintiffs. It is not in issue that this work was defective and as a result the house was not weathertight. The plaintiffs now claim from the defendant Council $1.925 million for the cost of repairs and some other sums for consequential losses. The plaintiffs contend that the Council was negligent in carrying out functions under the Building Act
1991. The Council admits that…

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 Johnson v Auckland Council

Details

AGLC: Johnson v Auckland Council [2013] NZHC 1148
Case: [2013] NZHC 1148
Decision Date: 20 May 2013

CaseChat Overview and Summary

In the case of Johnson v Auckland Council, the plaintiffs sought costs from the defendant Council generally on a 2B basis. The Council argued that there should be no order for costs as the plaintiffs did not succeed on substantial issues that went to a hearing. The third party, Mr. Johnston, sought costs from the Council, while the Council argued that Mr. Johnston’s costs should be paid by the plaintiffs. The court found that the Council was entirely successful on all of the issues of consequence between the plaintiffs and the Council that were before the Court at the hearing. The plaintiffs’ failure to succeed on the issues of contributory negligence and the measure of damages meant that they were unsuccessful overall. The court also considered the settlement offer made by the Council, which provided substantial grounds for declining the plaintiffs' application for costs. The court found that the Council should pay Mr. Johnston’s costs of $62,416 and disbursements of $180.50. The plaintiffs' claim for costs and disbursements against the Council was dismissed.

Orders