Premier Property Developments Limited v OHL Limited - [2023] NZHC 3032

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1536

[2023] NZHC 3032

BETWEEN PREMIER PROPERTY DEVELOPMENTS LIMITED
Plaintiff/counterclaim defendant

AND

OHL LIMITED

Defendant/counterclaim plaintiff

AND

COLLIERS NEW ZEALAND LIMITED

(discontinued) Third party

Hearing: On the papers

Counsel:

S E Wroe and TJM Ashley for plaintiff/counterclaim defendant J D McBride and E A Gambrill for defendant/counterclaim plaintiff

Date of judgment:

30 October 2023

JUDGMENT OF JAGOSE J

[Costs]

This judgment was delivered by me on 30 October 2023 at 3.30pm.
Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Counsel/Solicitors:
Sarah Wroe, Barrister, Auckland Josh McBride, Barrister, Auckland
Elizabeth Gambrill, Barrister, Auckland Grant & Co, Auckland
Burton Partners, Auckland Meredith Connell, Auckland

PREMIER PROPERTY DEVELOPMENTS LTD v OHL LTD – Costs [2023] NZHC 3032 [30 October 2023]

[1]    My 27 July 2023 judgment found Premier was entitled to recover from a stakeholder the $692,000 balance of sale price paid by OHL on a property transaction. I took a preliminary view neither party could claim comprehensive success, because “although Premier has obtained the relief it sought, that only is because it offered reasonable mitigation for its established (but not admitted) warranty breach”, and costs therefore should not be payable. I nonetheless reserved costs for determination on any exchange of memoranda.1
[2]    Premier says its recovery as sought is its success, giving it “a prima facie entitlement to costs” calculated at 2B scale as $71,222 (plus disbursements of
$30,122.40), for uplift by 50 per cent to reflect OHL’s failure to accept Premier’s   14 September 2020 offer of commercial settlement (by reimbursement of $111,000 of the stake to OHL, and release of the $581,000 balance to Premier).

[3] OHL responds my found breach of Premier’s warranty means Premier cannot be considered successful as if vindicated at trial. After removal of a costs allowance for second counsel and exclusion of GST from disbursements, it recalculates scale costs at $65,247 (and disbursements of $26,193.39). But it endorses my preliminary view costs are not payable, and says — if Premier’s offer qualified for consideration as an offer to settle or dispose of a proceeding issued nearly a year later — OHL was reasonably justified in rejecting it in the context of the parties’ respective commercial negotiations.

[4] In reply, Premier accepts OHL’s recalculation. But it reasserts its success, and says its offer plainly was to settle an anticipated proceeding as the only alternative to obtain the stake’s release.

[5] The starting point for my determination of Premier’s costs claim is the fundamental principles “the party who fails with respect to a proceeding … should pay costs to the party who succeeds” and “so far as possible the determination of costs should be predictable and expeditious”.2 I may refuse or reduce costs otherwise payable if “although the party claiming costs has succeeded overall, that party has

1 Premier Property Developments Ltd v OHL Ltd [2023] NZHC 1962 at [68]–[70].
2 High Court Rules 2016, r…

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.

Continue reading Premier Property Developments Limited v OHL Limited

Details

AGLC: Premier Property Developments Limited v OHL Limited [2023] NZHC 3032
Case: [2023] NZHC 3032
Decision Date: 30 October 2023

CaseChat Overview and Summary

The case of Premier Property Developments Limited v OHL Limited was heard in the High Court of New Zealand, Auckland Registry. The dispute involved a property transaction where Premier Property Developments Limited sought to recover a $692,000 balance from a stakeholder, while OHL Limited argued against this recovery. The court had to determine the appropriate costs to be awarded following a previous judgment in favor of Premier. The case also involved a third party, Colliers New Zealand Limited, who was later discontinued from the proceedings.

The primary legal issues addressed by the court were whether Premier was entitled to costs following its partial success in the case and whether the offer of commercial settlement made by Premier should influence the costs determination. The court needed to assess the success of each party, considering both the substantive findings and the overall outcome of the proceedings. The court also had to determine if Premier's offer of commercial settlement qualified for consideration in the costs calculation and if OHL was justified in rejecting this offer.

In its judgment, the court held that while Premier had succeeded in obtaining the balance from the stakeholder, it was not entirely successful because it had breached a warranty. The court found that Premier's failure on the substantive issues of breach and loss did not entitle it to costs. The court further determined that the commercial settlement offer did not qualify for consideration in the costs calculation because it was made after the proceedings had been initiated. The court concluded that OHL, having failed on its claims for compensation, was not entitled to costs either. Therefore, the court refused to make an order for costs to either party.

The court's final orders were that neither Premier Property Developments Limited nor OHL Limited would be awarded costs. The court emphasized the importance of predictability and expeditiousness in cost determinations, highlighting that a party's failure on substantive issues could result in the refusal of costs even if they succeeded overall.

Orders