Limitless Construction Limited v McNeil - [2018] NZHC 1202

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA TE ROTORUA-NUI-Ā-KAHU ROHE

CIV-2016-463-120

[2018] NZHC 1202

BETWEEN
LIMITLESS CONSTRUCTION LIMITED

(In Liquidation) First Plaintiff

DAVID THOMAS
Second Plaintiff

AND

PHILLIP McNEIL

First Defendant

PHILLIP McNEIL, LESLEY McNEIL AND CLIFFORD ERNEST TEASDALE
Second Defendants

LESLEY McNEIL

Third Defendant

Hearing: On the papers

Counsel:

D Fraundorfer and M Battersby for the Plaintiffs No submission for the Defendants

Judgment:

25 May 2018

JUDGMENT OF PALMER J

This judgment is delivered by me on 25 May 2018 at 4.00 pm pursuant to r 11.5 of the High Court Rules.

.....................................................
Registrar / Deputy Registrar

Solicitors:
Holland Beckett Law, Tauranga QS Law, Levin

LIMITLESS CONSTRUCTION LTD (In Liq) v McNEIL [2018] NZHC 1202 [25 May 2018]

What happened?

[1] On 11 August 2017, a five-day hearing of this proceeding was set down for 7 May 2018 in Rotorua. Timetabling directions were made by consent on 5 March 2018.

[2] On 3 April 2018, in the absence of an amended statement of claim, the plaintiffs applied for judgment by formal proof or unless orders. They say they had not heard from the defendants since October 2017. On 5 April 2018, Mr Haines advised he had just been instructed and wished to “comply with the spirit of the timetable”. He sought an extension to the deadline for the statement of defence until 9 April 2018 and advised he would confer with counsel over timetable amendments. The same day, counsel for the plaintiffs sought amended timetabling directions. On 9 April 2018, the Registry asked Mr Haines for his position on the proposed directions. It asked again on 13 April 2018, but received no response.

[3] On 13 April 2018, counsel for the plaintiffs expressed concern about the risk to trial and sought unless orders. On 15 April 2018, the defendants filed a statement of defence. On 17 April, the plaintiffs’ briefs were filed. On 20 April 2018, I directed counsel to file a joint memorandum by 26 April 2018, proposing a new timetable to trial. On 23 April 2018, the plaintiffs requested the defendants’ briefs and documents for inclusions in the common bundle which was due on 27 April 2018.

[4] On 24 April 2018, the plaintiffs filed a memorandum seeking an urgent teleconference. On 26 April 2018, counsel for the plaintiffs advised Mr Haines had indicated the defendants’ briefs would not be served before 4 May 2018. On 27 April 2018, at the teleconference, Mr Haines confirmed that indication. He advised he had been instructed too late for the timetable to be complied with. Counsel for the plaintiffs agreed it would be difficult to hold the trial on that basis and sought an order for wasted costs.

[5] By minute of 27 April 2018, I vacated the fixture set to commence on 7 May 2018 and set a timetable for the plaintiffs and defendants to file submissions on wasted costs. The plaintiffs complied with that timetable. The defendants did not.

Law…

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 Limitless Construction Limited v McNeil

Details

AGLC: Limitless Construction Limited v McNeil [2018] NZHC 1202
Case: [2018] NZHC 1202
Decision Date: 25 May 2018

CaseChat Overview and Summary

In the matter of Limitless Construction Limited v McNeil, the High Court of New Zealand considered an application for wasted, increased and indemnity costs following the defendants' failure to meet the timetable set for the trial. The plaintiffs sought an award of costs due to the defendants' lack of communication and failure to meet deadlines, which ultimately led to the adjournment of the trial. The court was tasked with determining whether the defendants' conduct warranted an award of wasted costs, and if so, whether the award should include increased or indemnity costs.

The court considered the principles of awarding costs, particularly the concept of "wasted costs," which include costs incurred for work that will not benefit the case and the value of duplicated work. The court referenced previous cases that established the jurisdiction to order wasted costs when a trial is postponed due to the fault of one party, and the impact of such defaults on other parties and court resources. The court also reviewed the rules regarding increased and indemnity costs, noting that such awards should be justified and not exceed 50% of scale costs.

The plaintiffs argued that the defendants' unreasonable conduct, including a lack of engagement and failure to file an amended statement of defence, resulted in significant wasted costs. They claimed wasted costs on a 2B basis plus disbursements and a 20% uplift, as well as wasted expert fees. The defendants did not respond to the application.

The court found that the defendants' lack of communication and failure to comply with the timetable justified an award of wasted costs. The court agreed that the defendants' conduct warranted an award of increased costs, amounting to a 20% uplift on scale costs, but stopped short of ordering indemnity costs. The court awarded the plaintiffs wasted costs on a 2B basis with a 20% uplift, plus disbursements and wasted expert fees.

Orders