Kelly v Lasque Construction Ltd - [2015] NZHC 3368

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-007500 [2015] NZHC 3368

BETWEEN
ROBIN JOHN LEARY KELLY,

PATRICIA ANN KELLY AND LINDA GLASSWELL as Trustees of THE KELLY FAMILY TRUST

Plaintiffs

AND

LASQUE CONSTRUCTION LIMITED First Defendant

SIGNATURE RESIDENTIAL LIMITED Second Defendant

SIGNATURE HOMES LIMITED Third Defendant

STEWART CRAIG WILSON Fourth Defendant

Hearing: On the papers

Appearances:

A R Gilchrist and A V Shinkarenko for Plaintiffs
C M Meechan QC and A Durrant for Defendants

Judgment:

22 December 2015

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Tuesday, 22 December 2015 at 11:30 am pursuant to r 11.5 of the High Court Rules 1985.

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

Solicitors: Blackwells, Auckland
Wiltshire Stone, Auckland

Copy to: A Gilchrist, Auckland
C Meechan QC, Auckland

KELLY & ORS v LASQUE CONSTRUCTION LTD & ORS [2015] NZHC 3368 [22 December 2015]

[1] I gave judgment in this proceeding in favour of the defendants on 18 August

2015.1 The parties have been unable to reach agreement on three discrete aspects of their costs claims - the costs to be awarded for answering interrogatories, the costs to be awarded for expert witness fees, and whether an uplift from scale costs is necessary.

[2] The proceedings have been categorised as standard 2B proceedings. [3] I consider each issue in turn.
Answer to Interrogatories

[4] The plaintiffs issued one comprehensive notice to answer interrogatories and served it on all the defendants. The defendants correspondingly seek four one day allocations of time for answering those interrogatories, reflecting the time required for that step for each defendant.

[5] The plaintiffs say that the defendants all had common legal representation for each of the four responses necessary, and that the matter should therefore be treated as requiring just one allocation of time. They say that it was obvious which questions were directed to which party. On the other hand, the defendants say that the lack of four separate notices required the interrogatories to be broken down, and a separate affidavit for each defendant to be prepared, the time for which is not reflected if just one allocation is granted.

[6] In the alternative, the plaintiffs submit that the step should be categorised as band A, as the reasonable time for each answer to interrogatories would only be a comparatively small amount of time.

Analysis

[7] In Body Corporate No 189855 v North Shore City Council, the two plaintiffs in that case sued seven defendants. They claimed that category C costs should apply
to each of the interrogatories they answered. Venning J held that given the number

1 Kelly v Lasque Construction Ltd [2015] NZHC 1957.

of plaintiffs and defendants, multiple time allowances were available for the interlocutory steps, but took into account that there would be a degree of repetition in that work.2 He awarded the first attendances on a band C basis, with subsequent attendances on band B.

[8] In this case, the opposite is claimed, in the sense that the four linked defendants…

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 Kelly v Lasque Construction Ltd

Details

AGLC: Kelly v Lasque Construction Ltd [2015] NZHC 3368
Case: [2015] NZHC 3368
Decision Date: 22 December 2015

CaseChat Overview and Summary

The plaintiffs, Robin John Leary Kelly, Patricia Ann Kelly, and Linda Glasswell as Trustees of The Kelly Family Trust, brought a claim against Lasque Construction Limited, Signature Residential Limited, Signature Homes Limited, and Stewart Craig Wilson. The plaintiffs sought damages for alleged defects in the construction of a residential property. The defendants sought a costs determination following a prior judgment in their favour. The key issues for the court were the costs to be awarded for answering interrogatories, the costs to be awarded for expert witness fees, and whether an uplift from scale costs was necessary. The court awarded each defendant one time allocation for answering interrogatories, on a band A basis, as a comparatively small amount of time would be necessary for the work undertaken. Regarding expert witness fees, the court found that the fees claimed by the defendants were reasonable and necessary, but reduced the claim by 10 per cent for the lack of comparative evidence. The court also awarded an uplift of 20 per cent on scale for the defendants, due to the plaintiffs' legally unsustainable claims and refusal to accept a reasonable settlement offer.

The final orders of the court were that the defendants are entitled to 2B costs generally, with a 20 per cent increase on scale. The interrogatories costs are to be awarded on a band A basis. The defendants are also entitled to disbursements of $20,846.20 for expert witness fees.

Orders