Mok v Bolderson HC Auckland CIV-2010-404-007292
[2011] NZHC 1361
•9 August 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2010-404-007292
UNDER Section 93 of the Weathertight Homes
Resolution Services Act 2006
BETWEEN CHONG HUNG MOK AND SHUI HA HO Appellants
ANDALAN RICHARD BOLDERSON First Respondent
ANDBLAKE WILLIAM BOYD Second Respondent
Hearing: On the Papers
Counsel: L Gerard and R Potter for Appellants S R J Hamilton for First Respondent No appearance for Second Respondent
Judgment: 9 August 2011
JUDGMENT OF WHATA J ON COSTS
This judgment was delivered by Justice Whata on
9 August 2011 at 12.30 p.m., pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors:
Hayden Tate Limited, PO Box 47 640, Ponsonby, auckland 1144
Kennedys, PO Box 3158, Auckland
MOK AND HO V BOLDERSON HC AK CIV-2010-404-007292 9 August 2011
[1] In my judgment of 20 April 2011 I made orders against the first respondent, Mr Bolderson on the appellant’s first cause of action (under the Fair Trading Act) for
25 per cent of the losses claimed by the appellants. I remitted the appellant’s second cause of action (in negligent misstatement) to the Tribunal. I made no finding in relation to causation and for that reason referred the matter back to the Tribunal.
[2] I awarded costs to the appellants and disbursements on a 2B basis and invited memoranda in the event that costs were not agreed.
[3] The appellants seek scale costs of $5,452 and disbursements of $2,277.76. These figures are not disputed by the first respondent.
[4] Rather, the first respondent contends that the Court may reduce costs where a party has only been partially successful. The first respondent says that this is particularly so where the partially successful party has failed on another cause of action that significantly increased the costs of the opposing party.
[5] The first respondent refers to the Court of Appeal decision in Packing In
Limited (In Liquidation), formerly known as Bond Cargo Ltd v Chilcott[1] as follows:
In a case such as the present, where in broad terms each party has had similar success, we do not consider it helpful to focus too closely on the question which party has failed and which has succeeded … In the end, as in all costs matters, the Court must endeavour to do justice to both sides, bearing in mind all material features of the case.
[1] Packing In Limited (In Liquidation), formerly known as Bond Cargo Ltd v Chilcott (2003) 16 PRNZ
869 at [5].
[6] Mr Hamilton makes the point that in defending the negligent misstatement claim (on which he partially succeeded in the sense that I was not satisfied that causation had been established) some recognition should be given to the increased
costs incurred by him in meeting that cause of action.
[7] In those circumstances, Mr Hamilton says that a fair result would be to award to the appellants 25 per cent of their scale costs and disbursements in relation to this appeal.
Assessment
[8] The aim of a costs award is, as the Court of Appeal said, to endeavour to do justice to both sides, bearing in mind all material features of the case.
[9] It is clear that this litigation has come at significant personal cost both to the appellants and the first respondent. As the history to this litigation demonstrates, this is not a case where it is easy to be unequivocal about the liability of the first respondent, Mr Bolderson. It is for that reason I approached his liability under the Fair Trading Act in the way that I did and as set out at paragraph [176] of my judgment.
[10] However, the ordinary presumption is that a successful litigant will get its costs. The appellants have been successful, albeit on a more qualified basis than they would have hoped. But that reflects the policy of the Act in question, and does not bear on their overall entitlement on the question of costs.
[11] On that basis, while I can understand the points being raised by the first respondent, the appellants are entitled to their scale costs and disbursements.
[12] Order accordingly.
Whata J
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