Roberts v Jules Consultancy Limited - [2020] NZHC 303

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2017-485-130

[2020] NZHC 303

UNDER the Fair Trading Act 1986

BETWEEN

MICHAEL DOUGLAS ROBERTS

Plaintiff

AND

JULES CONSULTANCY LIMITED

First Defendant

JULES LELOIR

Second Defendant

On the papers

Counsel:

B M Easton and H E T Thomson for Plaintiff J K Mahuta-Coyle for Defendant

Judgment:

27 February 2020

JUDGMENT OF THOMAS J (COSTS)

Introduction

[1] In my judgment dated 25 March 2019 (the liability judgment), I held that the defendants, Jules Consultancy Limited and Mrs Jules Leloir, engaged in misleading and deceptive conduct, and made false and misleading representations1 in connection with the sale of Unit 812 (the Apartment) of the Sirocco Apartments in Wellington.2 The behaviour at issue concerned the defendants’ representations that, although the Sirocco Apartments had weathertightness issues, they related only to the walkways

1 In breach of ss 9 and 14 of the Fair Trading Act 1986.
2 Roberts v Jules Consultancy Ltd [2019] NZHC 555.

ROBERTS v JULES CONSULTANCY LIMITED [2020] NZHC 303 [27 February 2020]

and had been rectified. In fact, the Sirocco Apartments suffered from systemic weathertightness issues and the defendants possessed information about those issues.

[2] In my judgment dated 17 December 2019 (the quantum judgment), I awarded the plaintiff, Mr Roberts, $93,500 (diminution in value of the Apartment at $110,00 less contributory negligence at 15 percent), plus $25,000 general damages.3

[3] The plaintiff now seeks costs on a 2B basis, except in relation to the preparation of evidence for the liability hearing, for which he seeks increased costs. The plaintiff also seeks disbursements (counsel’s travel and accommodation costs, and expert witness fees).

[4] The defendants accept that costs should follow the event but submit the scale and disbursement costs assessed by the plaintiff require adjustment and that the Court’s discretion to reduce costs should be exercised in view of the outcome.

[5]The parties agree that the interest to be paid on the judgment sum is

$26,692.23.

The law

[6] Costs are at the discretion of the Court, qualified by the principles in the High Court Rules 2016 (the Rules).4 The intent of the Rules is to provide reliable and expeditious costs decisions and to do justice to both parties.5 The general principle is that costs follow the event unless particular considerations indicate otherwise.6

Increased costs: preparation for liability hearing

[7] The plaintiff seeks increased costs from two and a half days to five days for evidence preparation for the liability hearing.7 The uplift is sought on the basis of the

3      Roberts v Jules Consultancy Ltd [2019] NZHC 3342.
4      Rule 14.1(1)–(2); Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [7]–[8].
5      High Court Rules 2016, r 14.2(g).
6      Rule 14.2(1)(a); Shirley v Wairarapa District Health Board [2006] NZSC 63, [2006] 3 NZLR 523 at [19].
7      This is the time allocated under Band C.

defendants’ failure to admit any of…

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: [2020] NZHC 303
Decision Date: 27 February 2020

CaseChat Overview and Summary

In Roberts v Jules Consultancy Limited, the plaintiff, Mr Michael Douglas Roberts, sought costs from the defendants, Jules Consultancy Limited and Jules Leloir, following a finding of misleading and deceptive conduct under the Fair Trading Act 1986. The defendants were found to have made false and misleading representations regarding the weathertightness issues of the Sirocco Apartments in Wellington, of which Unit 812 was a part. The primary legal issues the court had to address were whether the plaintiff was entitled to increased costs for the preparation of evidence for the liability hearing due to the defendants' refusal to admit certain facts, and whether the scale and disbursement costs assessed by the plaintiff required adjustment.

The court determined that the plaintiff was entitled to increased costs for evidence preparation for the liability hearing because the defendants had failed to admit any of the facts specified in the Notices to Admit Facts served on them. This failure necessitated the plaintiff to engage experts to testify on the defects, damage, and repair costs. The court found that the defendants had no reasonable justification for not admitting these facts, and thus the plaintiff was entitled to the increased costs. However, the court did not find merit in the plaintiff's request for increased costs related to the defendants' responses to interrogatories, as the interrogatories went to the core of the case.

Regarding the scale costs, the court accepted the plaintiff's calculation. For disbursements, the court allowed costs for counsel’s travel and accommodation, finding that it was reasonable for the plaintiff to continue instructing Wellington-based counsel despite their office closure. The court also allowed expert witness fees, ruling that it was reasonable for the plaintiff to address the cost of repair as a measure of loss, despite the eventual finding that repair was uneconomic.

Finally, the court exercised its discretion to reduce the scale costs by 15 per cent in light of the defendants' successful defence of contributory negligence. The court concluded that the plaintiff's failure in this regard significantly increased the defendants' costs.

The final orders of the court awarded the plaintiff interest of $26,692.23, plus costs and disbursements totaling $132,386.15, which included reduced scale costs, disbursements, and expert witness fees.

Orders