Palmer v Hewitt Building Limited - [2021] NZHC 2435

IN THE HIGH COURT OF NEW ZEALAND MASTERTON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKAORIORI ROHE

CIV-2019-435-005

[2021] NZHC 2435

BETWEEN
BARBARA LYNN PALMER

Plaintiff

AND

HEWITT BUILDING LIMITED

First Defendant

AND

MARK WILSON HEWITT

Second Defendant

Hearing: On the papers

Appearances:

P W Michalik for the Plaintiff

R P Conner and S J Martin for the Second Defendant

Judgment:

16 September 2021

JUDGMENT OF COOKE J

(Costs)

[1] In my judgment of 19 June I gave the plaintiff judgment against the first defendant on a formal proof basis, and judgment against the second defendant for lesser amounts than were claimed.1 I directed that if the parties were unable to agree on costs memoranda could be filed.

[2] By memorandum dated 8 September 2021 the plaintiff seeks costs, and by memorandum dated 10 September the second defendant takes issue with elements of the claim. I accept the criticism made in the memorandum of counsel for the second defendant that given that details of the costs claim were only provided to counsel for the second defendant on 2 September and had not been responded to there has been no real attempt to seek to agree costs.

1 Palmer v Hewitt Building Ltd [2021] NZHC 1460.

PALMER v HEWITT BUILDING LIMITED [2021] NZHC 2435 [16 September 2021]

Joint and several liability

[3] As counsel for the second defendant acknowledged, under r 14.14 liability of the defendants is joint and several unless the Court directs otherwise. The second defendant seeks a direction departing from joint and several liability, at least in relation to some elements of the costs claim. This issue is not addressed in counsel for the plaintiff’s memorandum reflecting the lack of meaningful engagement before the plaintiff’s memorandum was filed.

[4] I see no reason to direct that the liability of the defendants should not be joint and several here. The second defendant’s decision not to defend the claim against the first defendant was made reasonably late in the course of the proceedings. The preparation for the case, including what became a formal proof against the first defendant, properly addressed the claims against both defendants. I make the assessment of costs on that basis and also direct that the costs liability is joint and several.

Commencement (Step 1)

[5] The plaintiff claims an allowance under time band C for the commencement of the proceeding at 10 days rather than 3 days provided for under band B. The second defendant does not accept that this higher allowance is appropriate.

[6] I accept that a higher allowance is appropriate. This claim had a degree of legal and factual complexity. Each item of the building process that was alleged to be deficient needed to be identified in the statement of claim, with the particular basis for the deficiency outlined, and the appropriate loss for that item specified. The exercise of making a full assessment of the alleged deficiencies with the property, and the remedy for those deficiencies, would have involved a significant…

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.

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Details

Case: [2021] NZHC 2435
Decision Date: 16 September 2021

CaseChat Overview and Summary

In Palmer v Hewitt Building Limited, the plaintiff, Barbara Lynn Palmer, sought costs against the first defendant, Hewitt Building Limited, and the second defendant, Mark Wilson Hewitt. The case originated from a formal proof judgment in which the plaintiff was awarded damages against both defendants for breaches of building and construction standards. The dispute now before the court concerns the assessment of costs incurred by the plaintiff in the proceedings. The court was tasked with determining whether the plaintiff's claims for costs were reasonable and appropriate, including the assessment of joint and several liability, the time allowances for various procedural steps, and the allowance for specific disbursements and expert fees.

The court first addressed the issue of joint and several liability. The second defendant argued for a departure from joint and several liability, but the court found no reason to depart from this principle, given the late decision by the second defendant not to defend the claim against the first defendant and the comprehensive preparation for the case against both defendants. The court therefore upheld joint and several liability for the costs.

Regarding the commencement of the proceedings, the plaintiff sought a higher time allowance for the initial steps due to the complexity of the case. The court agreed that a higher allowance under time band C was appropriate, acknowledging the significant time required to identify deficiencies and specify losses.

For the list of documents provided on discovery, the plaintiff claimed an extended time allowance. The court, however, found that the time for creating the list itself did not warrant an extended allowance and upheld the standard time under band B.

The plaintiff's claim for hearing time was also scrutinized. The court accepted that a four-day allowance was appropriate given the extensive use of briefs of evidence as read, rather than the five-day allowance claimed.

The court also considered specific disbursements such as scanning and copying costs, and expert valuer fees. It allowed the scanning and copying costs as reasonably necessary and efficient, but only partially allowed the expert fees, recognizing their relevance to the claim against the first defendant.

In conclusion, the court awarded costs to the plaintiff based on the outlined assessment, upholding joint and several liability and making specific allowances for time and disbursements as deemed reasonable.

Orders