Kelly v Lasque Construction Ltd

Case [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…

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Kelly v Lasque Construction Ltd [2015] NZHC 3368
Case
[2015] NZHC 3368
Decision Date

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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