Note North Shore City Council v Body Corporate 189855 [Byron Avenue]

[2010] NZCA 235

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NOTE  5

North Shore City Council v Body Corporate 189855

[Byron Avenue]

Court of Appeal    Wellington   CA507/2008; [2010] NZCA 235    10

7, 8, 9, 10, 11  September 2009; 4 June 2010

William Young P, Arnold and Baragwanath  JJ

The judgment of the Court was delivered by

BARAGWANATH  J.   [1]   In   O’Hagan   v  Body  Corporate    189855    15 [Byron  Avenue]1 we reserved costs and leave to all of the parties to apply to the Court for correction of any material errors and omissions in the judgment.2

Clarification  of awards  for damages for non-economic loss

1. Counsel have drawn our attention to a possible difference between the damages  orders for non-economic  loss proposed by Baragwanath  J at  [129]    20 and those proposed by William Young  P at  [153] (with which Arnold  J agreed

at  [183(a)]).

1. For the avoidance of doubt, the orders proposed by Baragwanath  J are the orders of the Court.

Costs   25

Variations  to costs orders  made in High Court

1. In the High Court, Venning  J reserved costs.3   Counsel were unable to agree and filed memoranda. Venning  J made the following order:4

   [35] The plaintiffs [the first and second respondents]  are to have costs in

   the  sum  of  $236,985.00  calculated  in  accordance  with  [an]  attached    30 schedule  together  with  disbursements  of $156,758.15.  The first, second

   and seventh defendants are jointly and severally liable to the plaintiff for costs and disbursements  in that sum.

[36]  The  third  and  fourth  defendants  [the  third  and  fifth  respondents respectively] are jointly liable with the first, second and seventh defendants    35 [the  appellant,  and  fourth  and  eighth  respondents  in  respectively]  for

10  percent  of  those  costs  and  disbursements   namely  $23,698.50  and

$15,676.00 respectively.

[37] The fifth and sixth defendants [the sixth and seventh respondents  in respectively]   are  to  have  costs  against   the  plaintiff   in  the  sum  of    40

1. O’Hagan   v  Body  Corporate   189855  [Byron  Avenue]  [2010]  NZCA  65,  [2010]

   3 NZLR 445.

2. At [130].

3. Body Corporate 189855 v North Shore City Council HC Auckland CIV-2005-404-5561,

   25 July 2008 at [426].

4. Body Corporate 189855 v North Shore City Council HC Auckland CIV-2005-404-5561,

   2 October 2008.

$127,200.00  plus  disbursements  of  $8,743.61.  There  will  be  a Bullock

order that the plaintiffs are entitled to recover part of those costs namely

$39,360.00 and disbursements, $1,254.48 (in total $40,614.48) against the first defendant.

1. [5]       The second respondents’ cross-appeal to this Court was successful in the following respects:

   (a)  the finding of contributory negligence against the trustees of the Clark

   Family Trust was reversed;

   (b)  damages for non-economic  loss were awarded to Mrs  Clark;

2. (c)  the quantum of such damages increased; and

   (d)  the Council conceded consequential  losses of $3,898 to Ms  Kim.

[6]       The second respondents  received costs in the High Court. There is no reason to revisit that order.

Costs in this Court

1. [7]       Mr  Goddard QC for the appellant Council advised that costs as between the Council and the first and second respondents have been settled.

Orders

(A) The   general   damages   awards   proposed   by   Baragwanath  J   in

O’Hagan v Body Corporate 189855 [Byron Avenue] [2010] NZCA 65,

1. [2010] 3 NZLR 445 at [129] are the orders of the Court.

   (B) The costs order made by the High Court in respect of costs in that

   Court stands.