Paul v Jade Residential Limited - [2019] NZHC 1250

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2018-441-29

[2019] NZHC 1250

BETWEEN
MURRAY PAUL AND MARIE PAUL

Appellants

AND

JADE RESIDENTIAL LIMITED

Respondent

On the papers

Counsel: K A Lomas for Appellants M B Lawson for Respondent

Judgment:

5 June 2019

JUDGMENT OF GRICE J

(Costs)

[1]The appellants, the Pauls, apply for costs in relation to their successful appeal.

[2] My decision dated 1 March 2019 found the District Court Judge erred in relation to one aspect of liability and the appeal was allowed.1 The matter is not concluded as the Judge had granted leave for further evidence to be adduced concerning quantum. That is yet to be dealt with.

The Pauls’ application for costs

[3] The Pauls seek costs calculated in a schedule attached to its memorandum. The costs are calculated on a 2B basis in respect of all steps taken in the proceedings. Supporting documentation for the disbursements claimed are attached.

1 Paul v Jade Residential Limited [2019] NZHC 304.

PAUL v JADE RESIDENTIAL LIMITED [2019] NZHC 1250 [5 June 2019]

[4] The Pauls say they are entitled to costs as they are the successful party.2 They also submit they had attempted to resolve costs without the need for memoranda to be filed. The Pauls offered to accept the sum of $26,555.49 for costs and disbursements. This compares to approximately $30,000 which is now sought with supporting documentation. Jade Residential Ltd did not respond to that proposal.

[5]Jade Residential Ltd opposes an order for costs on the basis that:

(a)The calculation of scale costs requires the provision of invoices by the claiming party in order to establish that costs have actually been incurred;3

(b)There is a duplication of claims in relation to preparation of written submissions – one set relates to the appeal and the other to the cross- appeal. These were not separate proceedings as the cross-appeal was an integral part of the appeal hearing. The appeal and cross-appeal are interrelated and intertwined. Therefore, costs should not be sought for each three days’ time allocation for preparing written submissions on both the appeal as well as three days preparing written submissions on the cross-appeal.

[6]The Pauls reply saying:

(a)The costs claimed have actually been incurred by them. This was also confirmed by the counsel for the Pauls at a subsequent hearing on a related matter.

(b)They are entitled to costs for preparation of the cross-appeal as the grounds advanced by the respondent were separate and distinct from those raised by the Pauls in their appeal.

(c)Rule 14.2(1)(c) of the High Court Rules 2016 provides:

2 High Court Rules 2016, r 14.2(1)(a).
3 Rule 14.2(1)(f).

Costs should be assessed by applying the appropriate daily recovery rate to the time considered reasonable for each step reasonably required in relation to the proceeding or interlocutory application:

(d)The claimed steps were reasonably required including the filing of submissions on the appeal, the cross-appeal and on the supplementary issue of “good…

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: [2019] NZHC 1250
Decision Date: 5 June 2019

CaseChat Overview and Summary

The case of Paul v Jade Residential Limited involved the appellants, Murray and Marie Paul, who were successful in their appeal against the respondent, Jade Residential Limited. The appeal pertained to an earlier decision by the District Court regarding one aspect of liability, and the High Court allowed the appeal on 1 March 2019. The matter remained unresolved concerning the quantum of damages, with the District Court having granted leave for further evidence to be adduced.

The Pauls sought costs calculated on a 2B basis for all steps taken in the proceedings, attaching a schedule of their claimed costs and disbursements. They argued they were entitled to these costs as successful parties and had attempted to resolve the costs issue without filing memoranda. They proposed a lower amount of $26,555.49 for costs and disbursements, which was not responded to by Jade Residential Limited. The respondent opposed the costs order on the grounds that the calculation of scale costs required invoices to establish actual costs incurred and that there was a duplication of claims for the preparation of written submissions, as the cross-appeal was integral to the appeal.

The Pauls argued that the costs claimed had been incurred, the grounds of the cross-appeal were distinct from their appeal, and Rule 14.2(1)(c) of the High Court Rules 2016 justified the claimed costs. They further contended that the steps taken were reasonably required, including the filing of submissions on the appeal, cross-appeal, and supplementary issue of “good faith,” and if not all costs were allowed, then the costs for one set of submissions should be allowed on a 2C basis. They also claimed costs for the memorandum in reply, arguing that Jade Residential Limited should have engaged with them regarding the calculation of costs.

The court found that the Pauls had confirmed the actual costs exceeded the claimed costs. Given the nature of the appeal, which raised several points of law, the claimed costs did not appear excessive. The court accepted that separate costs were appropriate for the cross-appeal and good faith submissions, as these raised different matters from those in the appeal and were necessitated by issues arising during the appeal. The Pauls were entitled to these costs, with some discount applied for the good faith submissions on a 2A basis. The court concluded that the costs should follow the event, and the Pauls were entitled to costs in category 2B, reflecting the time and expertise required. Therefore, the court awarded costs in the amount of $28,321 and disbursements of $2,341.05 to the Pauls against Jade Residential Limited.

Orders