Marchand v Jackson

[2013] NZHC 2439

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV 2011-409-810

[2013] NZHC 2439

BETWEEN

NICOLA JAYNE MARCHAND and JACQUES RENARD MARCHAND and PATRICK GREGORY COSTELLOE

First Plaintiffs

NICOLA JAYNE MARCHAND and JACQUES RENARD MARCHAND

Second Plaintiffs

AND

JOHN F JACKSON

Defendant

AND

IAG NEW ZEALAND LIMITED

Third Party

InChambers:

Counsel:

G A Hair for Plaintiffs

B R D Burke for Defendant

Judgment:

18 September 2013

JUDGMENT OF THE HON JUSTICE KÓS

(Costs)

[1] In my judgment of 11 July 2013 I  found  in favour  of the plaintiffs on quantum, and awarded them damages of $2,686,779. Despite that, the defendant submits that costs on the quantum hearing should lie where they fall. Costs had earlier been awarded to the plaintiffs on the liability hearing, on a category 2 band B basis.

[2]  I decline the defendant’s invitation to allow these further costs to lie where they fall. For these reasons:

MARCHAND & ORS v JOHN F JACKSON [2013] NZHC 2439 [18 September 2013]

(a)The general principle under the High Court Rules is that a party who succeeds in the face of opposition should receive costs.

(b)I do not consider that the grounds set out in Rule 14.7 for the award of decreased costs exist here.

(c)The defendant continued to resist adverse findings on Issues 1 and 2 identified in my judgment of 11 July. That is as to the nature of the relevant policy that would have applied had he performed his contractual duty (Issue 1) and whether the policy would have been capped at either $1.5 million or 500 sq m2 (Issue 2). I found for the plaintiffs on both issues. The former issue was effectively conceded at the hearing, but the second was not.

(d)I did not find for the plaintiffs on Issue 3 (whether the policy would have been  uncapped).  That  was,  given  the  expert’s  evidence  by Mr Howie for the plaintiffs  at the first hearing, a somewhat opportunistic argument. But I am satisfied that it did not add substantially to costs in the hearing. It does not, therefore, alter the ordinary incidence of costs.

(e)The other remaining issues of significance  (Issues 4 and 5: what insurance valuation cap would have been applied in July 2009, and September  2010)  were  both  made  necessary  by  the  fact  that  the

defendant continued to maintain that the policy would have been capped at $1.5 million or 500 sq m2 (Issue 2), just as much as it was by the plaintiffs’ position that there would have been no cap (Issue 3).

(f)The position as to costs might have been different had the defendant not continued to contest Issue 2, and had made a Calderbank offer to the plaintiffs. He maintained the former position, and did not advance the latter.

Result

[3]   The plaintiffs will have costs calculated on a category 2 band B basis as set out in the plaintiffs’ schedule, together with disbursements as set out in that schedule also.

Stephen Kós J

Solicitors:

Malley & Co, Christchurch for Plaintiffs Harmans, Christchurch for Defendant