Sharma v JBK Construction NZ Limited

[2020] NZHC 1090

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-000761

[2020] NZHC 1090

UNDER

The Contract and Commercial Law Act 2017

IN THE MATTER

of breaches of the Contract and Commercial Law Act 2017 and/or breaches of contract and misrepresentation and/or breaches of the Building Act 2004 and/or breaches of the Resource Management Act 1991 and/or

negligence

BETWEEN

PREMILLA SHARMA AND NINTENDRA SHARMA

Plaintiffs

AND

JBK CONSTRUCTION NZ LIMITED

First Defendant

JAGDEEP SINGH SHERGILL

Second Defendant

On the papers:	at Auckland
Date of Judgment:	22 May 2020

JUDGMENT OF POWELL J

[Costs]

This judgment was delivered by me on 22 May 2020 at 3.30 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors/Counsel:      Henley-Smith Law, Auckland

Penney Patel Law (A Singh), Epsom, Auckland

(S McCarthy, Barrister, Manukau) for first defendants

Morgan Coakle (S. J Telford), Auckland for second defendant

SHARMA v JBK CONSTRUCTION NZ LIMITED [2020] NZHC 1090 [22 May 2020]

[1]                 This  is  an  application  to  determine   costs   by   the   first   defendant,   JBK Construction NZ Ltd (“JBK”), and the second defendant, Jagdeep Singh Shergill.

Background

[2]                 The application has arisen following the dismissal of the claims of the plaintiffs, Premilla and Nintendra Sharma. After months of inaction by the plaintiffs that resulted in a four-day fixture being vacated and a number of warnings given by other judges of this Court, by Minute dated 15 August 2019, I specified that “unless the plaintiffs have filed and served their briefs of evidence and an index of documents they wish to include in the common bundle by 5 p.m. on 28 August 2019 their statement of claim is struck out in whole”.

[3]                 No briefs were filed by the plaintiffs with the result that their statement of claim was struck out from 5 pm on 28 August 2019. The defendants have now sought costs. There has been some delay in addressing the costs application while I sought confirmation from the Registry that the plaintiffs had been made aware of the applications by the defendants.

[4]                 On account of inaction on behalf of the plaintiffs and the unavailability of the barrister acting on their behalf I was initially concerned the plaintiffs remained unaware of the cost applications. However, following inquiries with the Registry it is evident that the plaintiffs’ solicitor, Mr Mark Henley-Smith, of Henley-Smith Law, has taken no steps to withdraw as solicitor on the record and his office therefore continues to be the appropriate address for service for both directions of this Court and the service of documents by the other parties. Having been copied in to all minutes and memoranda in relation to the proceeding I am satisfied that service of the cost applications has been effected on Mr Henley-Smith, but despite this the plaintiffs have taken no steps in relation to the application.

The cost applications

[5]Both JBK and Mr Singh have sought costs on a 2B basis. JBK claims

$24,258.50 in costs and disbursements of $13,747.08; a total of $38,005.58. While Mr Singh has sought $27,126.50 in costs together with disbursements of $642.64; a

total of $27,769.14. Having considered the calculations provided by the defendants it is evident that the costs calculated for steps occurring prior to 1 August 2019 have incorrectly utilised the daily recovery rate that is to apply following that date.1 However, correcting that error it is clear the amounts claimed are otherwise in order and in the absence of any issue raised on behalf of Mr and Mrs Sharma I conclude it is appropriate to make the orders sought.

[6]Mr and Mrs Sharma are to pay costs and disbursements as follows:

(a)To JBK Construction NZ Ltd costs in the sum of $22,706.50 together with disbursements of $13,747.08, a total of $36,453.58.

(b)To Jagdeep Singh Shergill costs in the sum of $25,032.50 and disbursements in the sum of $642.64, a total of $25,675.14.

Powell J

1      The defendants incorrectly utilised the daily recovery rate of $2,390 as opposed to the correct rate of $2,230. As per the High Court Amendment Rules 2019, r 11 the higher rate only applies to steps taken after 1 August 2019.