T & T Drainage Limited v Rennell HC Auckland CIV-2009-404-001506

[2011] NZHC 146

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2009-404-001506

BETWEEN  T & T DRAINAGE LIMITED Appellant

ANDJOHN ALFRED RENNELL AND JUDITH PENELOPE RENNELL

First Respondent and Cross Appellant

ANDEDWARD RITCHIE MICHELL Second Respondent

Judgment:      16 February 2011 at 12:30 PM

JUDGMENT OF COURTNEY J AS TO COSTS

This judgment was delivered by Justice Courtney on 16 February 2011 at 12:30 pm

pursuant to R 11.5 of the High Court Rules.

Registrar / Deputy Registrar

Date.....................................

Solicitors:           Rice Craig, P O Box 72-440, Papakura 2244

Fax: [phone]

Wilson McKay, P O Box 28-347, Remuera, Auckland

Fax: [phone]

Counsel:             B O’Callahan, Carter & Partners, P O Box 2137, Auckland

Fax: [phone] – [email protected]

K F Gould, P O Box 1011, Shortland Street, Auckland 1140

Fax: [phone] – [email protected]

T & T DRAINAGE LTD V RENNELL HC AK CIV-2009-404-001506 16 February 2011

[1]      In my decision 11 March 2010 I held that T & T succeeded to a limited extent on its appeal and Mr and Mrs Rennell succeeded to a limited extent on their cross- appeal. I invited counsel to confer as to exact amounts by which the District Court judgement required adjustment as result of my findings. I also indicated that I was inclined to let costs lie where they fell in respect of the appeal given that both parties had succeeded to a limited extent.  However, if either party wished to apply for costs they could do so.

[2]      Mr & Mrs Rennell have applied for a final order as to the amount of the judgment in their favour resulting from the successful cross-appeal.   They do not seek  costs  on  the  appeal  itself.  Most  unfortunately,  the  Registry  mislaid  their counsel’s memorandum following its filing on 8 April 2010 and I have only now been asked to address the matter. There has been no response by T & T Drainage to the memorandum filed on behalf of Mr & Mrs Rennell.

[3]      The judgment on Mr and Mrs Rennell’s counterclaim entered in the District Court was $247,064.85.  That figure requires the following adjustments as a result of my findings on the cross-appeal:

(a)      At [21] I held that Mr and Mrs Rennell could not claim for work contracted to be done on a charge-out basis that was not in fact done. However, on the basis of the evidence the only figures I could identify as requiring deduction were $2,756.25 for an accessway drain and

$1,202.63 for the cesspit.   Mr Gould has submitted that there is insufficient evidence before the Court to identify or quantify other deductions.   In the absence of any submission on behalf of T & T Drainage I accept that the only deduction that can be made is the total of $3,950.88.

(b)      My finding at [52] requires an addition of $840.00. (c)           My finding at [54] requires an addition of $35,584.

(d)      My finding at [56] requires a deduction of $11,208.00.

[4] These adjustments produce a figure of $268,321.12. I note that the equivalent figure at paragraph 2 of Mr Gould’s memorandum is higher ($272,280.85) but that appears not to have taken account of the deduction resulting from [21]. From the figure of $268,321.12 is a further reduction of 10% to reflect the finding of contributory negligence at [60]. This results in a final figure for the counterclaim of $241,489.01.

[5]      Mr and Mrs Rennell also seek costs on the counterclaim in accordance with my finding at [101] that the Judge should have allowed them costs.   The amount claimed for costs in the District Court is $75,392.00.   The size of this figure is mainly due to the claim for 28 days preparation under Item 17.1 of Schedule 3

District Court Rules 2009.   Item 17.1 permits a claim for costs for preparation of twice the time occupied by the hearing.  The memorandum puts the trial time at 14 days.  However, the District Court Judge recorded in his decision that the case took nine full days (this seems to be 10 full and 2 half days). I can only allow costs on the basis of each full hearing day.   I therefore intend to award costs on the basis of a nine-day hearing which would entitle Mr and Mrs Rennell to 18 days preparation and nine days for the conduct of the trial.

[6]      In addition, Mr and Mrs Rennell have claimed seven days for second counsel. However, although this was a reasonably substantial claim and did (as most construction claims do) have its complexities, I do not consider that it justifies my certifying for second counsel.

[7]      The result is that costs will be awarded on a 2B basis for 36.9 days which produces a costs award of $47,232.00.  In addition, Mr and Mrs Rennell are entitled

to the disbursements they have claimed of $720.00.

P Courtney J