Tadd Management Limited v Weine
[2025] NZHC 483
•12 March 2025
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2019-485-781
[2025] NZHC 483
UNDER sections 24–30 and 35 of the Contract and Commercial Law Act 2017 IN THE MATTER OF
the property at 134 Queens Drive, Lower Hutt
BETWEEN
TADD MANAGEMENT LIMITED
Plaintiff
AND
RUTH RENTON WEINE and MICHAEL
DAVID HOFMANN-BODY as trustees of the Ruth Weine Family Trust
DefendantsAND
NEW ZEALAND CONSULTING ENGINEERS LIMITED
Third Party
On the Papers Counsel:
F B Collins for the Plaintiff
M R C Wolff for the Defendants
Judgment:
12 March 2025
COSTS JUDGMENT OF GWYN J
Solicitors:
JB Morrison, Wellington
Braun Bond & Lomas Ltd, Hamilton
TADD MANAGEMENT LIMITED v WEINE and HOFMANN-BODY as trustees of the Ruth Weine Family Trust [2025] NZHC 483 [12 March 2025]
Overview
[1] The proceeding related to the purchase by the plaintiff, TADD Management Ltd (TADD), of a commercial building at 134 Queens Drive in Lower Hutt in December 2017 (property). The vendors were the defendants, Ruth Weine and Michael Hofmann-Body as trustees of the Ruth Weine Family Trust.
[2] TADD brought claims against the defendants in contractual misrepresentation and in the alternative, common mistake, saying it relied on the defendants’ representations as to the seismic rating of the property. The defendants claimed against New Zealand Consulting Engineers Ltd (NZCEL) which had provided the Initial Seismic Assessment (ISA) of the property, alleging breach of contract, negligence, and breach of the Fair Trading Act 1986.
Procedural history
[3] On 5 April 2023 this Court gave judgment for TADD on its misrepresentation and common mistake claims.1 The Court dismissed the defendants’ claims against NZCEL. The Court awarded the plaintiff $609,842.40 together with costs on a 2B scale basis and interest.
[4] On 26 July 2023 this Court declined an application for increased or indemnity costs in respect of an interlocutory application for further and better discovery.2 The Court concluded that the plaintiff is entitled to 2B scale costs.
[5] On 14 September 2023 the Court issued a second costs judgment in relation to litigation services disbursements.
[6] On 21 November 2023 the Court declined an application for a stay of enforcement of the judgment and directed that TADD be paid the judgment sum immediately, without condition.3
1 TADD Management Ltd v Weine [2023] NZHC 764.
2 TADD Management Ltd v Weine [2023] NZHC 1968 [July costs decision].
3 TADD Management Ltd v Weine [2023] NZHC 3300.
[7] On 17 July 2024 the Court of Appeal overturned the High Court decision, finding there was no misrepresentation.4 It was unnecessary for the Court to address whether a mistake influenced entry into the contract. The Court directed that costs in the High Court are to be fixed by the High Court in light of the appeal decision.5 This judgment deals with the disputed issues relating to the calculation of these costs.
[8] The defendants seek increased costs (50 per cent uplift on 2B scale), actual disbursements and reimbursement of the third party’s costs. Subject to disputing specific steps, the plaintiff submits costs should be limited to the 2B scale, disbursements should be adjusted from their actual costs, and the costs of the third party should not be revisited.
Submissions
For the defendants
[9] Mr Wolff, for the defendants, seeks costs totalling $242,686.89. This comprises increased costs ($63,275.25 2B scale costs, uplifted by 50 per cent to become $94,912.87),6 actual disbursements ($62,625.22) and NZCEL’s costs ($75,833.63).
Increased costs
[10] The basis for the increased costs sought is the plaintiff’s rejection of the defendants’ Calderbank offer which the defendants submit was reasonable in the circumstances, given the Court of Appeal’s decision. It was not a token or symbolic offer; it was generous, based on the defendants’ assessment of the plaintiff’s claim (which the plaintiff had been notified of on 15 November 2019) and a review of the plaintiff’s evidence.
[11] The defendants submit that the plaintiff pursued an argument that lacked merit. Despite the November 2019 letter advancing a legal position later reflected in the Court of Appeal’s decision, and that decision showing the unmeritorious nature of the
4 Weine v TADD Management Ltd [2024] NZCA 323 [Appeal decision].
5 At [62].
6 High Court Rules 2016, r 14.6(3)(b).
plaintiff’s argument, the plaintiff elected to continue to a hearing. The defendants submit that they progressed their defence in a reasonable and expeditious manner, and the threshold for recovering increased costs is met.
Interlocutory discovery application
[12] In November 2020 the defendants filed an interlocutory application for further and better discovery from the plaintiff. The hearing was adjourned and the plaintiff provided the further discovery by consent. The defendants submit that they were the successful party on that interlocutory application and are entitled to costs accordingly.7 In submissions in reply, the defendants said costs on this interlocutory application have been decided in the 26 July 2023 decision, but they were included for completeness in this costs application.
Disbursements
[13] The defendants accept that disbursements should be calculated according to the GST exclusive figure. The defendants agree with the plaintiffs that the LawFlow disbursement is properly limited to the time period until the end of the trial.
[14] The defendants dispute the plaintiff’s assertion that the experts’ fees were unreasonable and contest the proposed reductions. The costs incurred by the parties for experts’ fees necessarily differ because the level of detail in their tasks differed. The defendants’ experts were tasked with reviewing the plaintiff’s experts’ assessments and when they disagreed, supplying their own reasoning and assessment. The defendants assert the starting point for recovering experts’ fees is that the actual fees are recoverable by the successful party.8
[15] As regards Mr Hunt’s mediation preparation, the defendants submit that this work involved preparation of an estimate and report, which were included in Mr Hunt’s brief of evidence. This work would have been required anyway and it should be recoverable.
7 See Precast NZ Ltd v Any Step Ltd [2017] NZHC 2450 at [47]–[49].
8 Citing Wellington Regional Stadium Trust v Attorney-General (2004) 17 PRNZ 429 (HC) at [14]; and AFFCO New Zealand Ltd v ANZCO Foods Waitara Ltd (2005) 17 PRNZ 676 (HC) at [19]– [20].
Third party’s costs
[16] Although the defendants paid NZCEL’s costs in the sum of $75,833.63 directly to the third party after the High Court decision found for the plaintiff, following the Court of Appeal’s decision, the defendants now seek reimbursement of those costs. The defendants refer to r 4.7(2) of the High Court Rules 2016 which puts a third party in the same position as a defendant.
[17] The defendants submit that when a defendant has properly joined a third party and succeeds in the proceeding, the plaintiff is ordinarily required to pay the costs of the defendant and the third party.9 In determining whether to make such orders, the court will consider whether it was reasonable for the third party to be joined.10 The defendants submit it was reasonable to join NZCEL to the proceeding because:
(a)The defendants were entitled to test the parameters of the limitation of liability clause in the contract between the defendants and NZCEL in this proceeding and the joinder was reasonable and necessary to defend the claim that the Initial Seismic Assessment was incorrect.11
(b)Prior to this joinder and until a Calderbank offer was made, NZCEL had refused to pay anything to the defendants.
(c)The plaintiff has not identified a reason to depart from the position that where a defendant has properly joined a third party and the plaintiff is unsuccessful in the proceeding, the plaintiff should pay the costs of the defendant and the third party.12
9 Shirley v Wairarapa District Health Board [2006] NZSC 63, [2006] 3 NZLR 523 at [22].
10 Science Alive Charitable Trust v Parry Field Lawyers [2019] NZHC 2918 at [30]–[37] and [40]– [43]; and Money World New Zealand 2000 Ltd v KVB Kunlun New Zealand Ltd HC Auckland CIV-2003-404-2542, 23 September 2005 at [33]; affirmed by the Supreme Court in Shirley v Wairarapa District Health Board, above n 9, at [22].
11 Bates v Auckland Council [2022] NZHC 336 at [17].
12 Shirley v Wairarapa District Health Board, above n 9, at [22].
For the plaintiff
[18] Mr Collins, for the plaintiff, opposes the costs sought by the defendants. The plaintiff submits that a total of $92,622.43 costs should be recoverable, comprising 2B scale costs with disputed steps deducted ($51,922.75) and disbursements of less than their actual costs ($40,699.68, excluding GST).
Increased costs
[19] The plaintiff submits this is not an appropriate case for increased costs. It says it is not determinative that the offer would have provided a better result than was achieved on appeal, given the Court must consider whether the rejection was reasonable at the time, not against the ultimate result.13 Rather, the plaintiff submits the timing of the Calderbank offer is determinative. It was reasonable to reject the offer given it was made less than two weeks before trial, when preparation was effectively complete.
[20]The plaintiff submits that this proceeding is analogous to Craike v Tilsley
where the defendant made an offer to settle for $20,000 about one month prior to trial.
The High Court declined to award increased costs, saying:14
[t]he Calderbank offer came down in essence to an elaboration of the statement of defence with the weaknesses in the plaintiffs’ case being articulated, accompanied by an offer of $20,000. The $20,000 offer in the order of things was never going to be accepted unless the plaintiffs were prepared to give up. Successful defendants who in letter form record their defences and invite a settlement should not necessarily be in a stronger position than any other defendant who takes the same position without sending a letter.
[21] The plaintiff submits that although the Court of Appeal judgment was not in its favour, it cannot be said that its argument lacked merit such that increased costs should be awarded, given its argument succeeded in the High Court.
13 New Zealand Sports Merchandising Ltd v DSL Logistics Ltd HC Auckland CIV-2009-404-5548, 19 August 2010 at [36].
14 Craike v Tilsley [2012] NZHC 2886 at [6].
Interlocutory discovery application
[22] The plaintiff disputes the defendants’ application for recovery of steps related to filing an interlocutory application for further and better discovery, preparation of submissions for the discovery hearing, and attendance at the discovery hearing. The plaintiff submits that the application for further discovery was improperly made and disputes that the defendants could be considered the successful party. The defendants did not attempt to confer with counsel for the plaintiff about further documents required. The plaintiff had acknowledged its ongoing discovery obligation, including that it would provide additional documents once seismic strengthening works had been completed.
Disbursements
[23] The plaintiff disputes the defendants’ application for GST-inclusive sums, submitting that any disbursements should be GST-exclusive.
[24] The plaintiff accepts the costs claimed for LawFlow Ltd’s electronic discovery services are recoverable by the defendants, but only until the end of the trial, which concluded on 11 November 2022. The invoice for the period between 1 December 2022 and 31 January 2023 should be excluded, so that the claimable sum is $727.12 (excluding GST).
[25] The plaintiff says the defendants’ expert fees are unreasonable. The plaintiff points to the disparity between costs incurred by the parties for expert fees. Excluding the cost of the valuer who provided evidence of a different nature, the plaintiff’s four experts ($22,729.72, excluding GST) cost less than one expert engaged by the defendants ($31,478.50, including GST, for Grant Hunt and $38,749.82, including GST, for Trevor Robertson). The plaintiff disputes the recoverability of Mr Hunt’s invoices for preparation for a mediation that did not eventuate, saying the recoverable amount with those fees deducted is $15,439.95 (excluding GST). As for Mr Robertson, the plaintiff seeks a 25 per cent reduction to his fees on account of their unreasonable quantum, resulting in an adjusted figure of $24,402.61 (excluding GST).
Third party’s costs
[26] The plaintiff says the defendants should not be entitled to claim scale costs for the third party notice and statement of claim. The default rule — that a defendant who successfully defends a plaintiff’s claim will be ordered to pay the costs of a third party joined by that defendant — is not displaced. The plaintiff submits it was unreasonable for the defendants to bring a claim against NZCEL when its fee proposal included a limitation of liability. The plaintiff should not have to bear the costs of the defendants’ unsuccessful claim against the third party.
Discussion
Scale costs, disputed step: third party’s costs
[27] The defendants’ third party claim against NZCEL related to the ISA provided by NZCEL to the defendants, which they in turn provided to the real estate agency marketing the property on their behalf. The ISA rated the building at 60% NBS. The plaintiff alleged that it relied on the marketing material, including the ISA, and was thereby induced to buy the property.
[28] In Money World New Zealand 2000 Ltd v KVB Kunlun New Zealand Ltd,15 the High Court found that an unsuccessful plaintiff may be required to pay the costs of third parties joined by a successful defendant if:
(a)The plaintiff’s claim is effectively against the third party; or
(b)The plaintiff’s claim had the inevitable result of the third party being joined by the defendant.
15 Money World New Zealand 2000 Ltd v KVB Kunlun New Zealand Ltd HC Auckland CIV-2004- 404-2542, 23 September 2005 at [32]; applied in Tindall v Far North District Council HC Auckland CIV-2003-488-135, 25 May 2007 at [32]; and Body Corporate 378351 v Auckland Council [2020] NZHC 2987 at [18].
[29] The authors of McGechan on Procedure observe that “a successful defendant should only be called on to meet a third party’s costs if the joinder was unnecessary or was for some reason unjustified.”16
[30] This is not a case falling within category (a) at [28] above. But in my view it does come within (b): the ISA was part of the material that the plaintiff said induced it to purchase the property. The Court of Appeal concluded that the NZCEL letter contained a statement of opinion that the building was “60% NBS” and the statements of fact it conveyed were true.17
[31] The limitation of liability clause in the contract between the defendants and NZCEL limited recovery of damages to $12,700. That might suggest that it was not necessary for the defendants to join NZCEL. The defendants argue they wanted to test that limitation clause in this litigation and I agree that, in the circumstances of the claim against them, that was a reasonable approach.
[32] I conclude the defendants joining NZCEL as a third party to the proceeding was necessary and reasonable to advance their defence. I do not see a clear basis articulated upon which the Court could conclude that the joinder was unjustified. In those circumstances, it is appropriate for the plaintiff to reimburse the defendants for the third party’s costs. I do not think it is reasonable for the plaintiff to pay the uplift on NZCEL’s costs sought by it from the defendants in relation to its without prejudice offers.
Scale costs, disputed step: interlocutory application for further and better discovery
[33] As concluded in the July costs decision in this proceeding, the plaintiff could not be considered “successful” in resisting the discovery application — the position was more nuanced.18 At the time, steps 23, 24 and 26 were deducted from the plaintiff’s costs schedule. In my view, the Court of Appeal’s decision does not change that conclusion given it concerned the substantive claim, not the interlocutory
16 Jessica Gorman and others McGechan on Procedure (online ed, Thomson Reuters) at [HRPt14.08].
17 Appeal decision, above n 4, at [44].
18 July costs decision, above n 2, at [44]–[48].
application. I conclude that these costs lie where they fall, given determining who was the “successful” party is not straightforward.
Increased costs: should an uplift from the scale costs be applied?
[34] Increased costs are governed by r 14.6 of the High Court Rules. That rule relevantly provides:
14.6 Increased costs and indemnity costs
(1) Despite rules 14.2 to 14.5, the court may make an order—
(a) increasing costs otherwise payable under those rules (increased costs); or
(b) that the costs payable are the actual costs, disbursements, and witness expenses reasonably incurred by a party (indemnity costs).
(2) The court may make the order at any stage of a proceeding and in relation to any step in it.
(3) The court may order a party to pay increased costs if—
…
(b) the party opposing costs has contributed unnecessarily to the time or expense of the proceeding or step in it by—
…
(ii) taking or pursuing an unnecessary step or an argument that lacks merit; or
…
[35] Although the Court of Appeal found for the defendants, in my view the plaintiff’s argument was not so lacking in merit that the proceeding could be considered an unnecessary argument under r 14.6(3)(b) of the High Court Rules. While the Court of Appeal directed that this Court is to determine costs in light of the appeal decision, it is relevant to the context that the plaintiff’s arguments were accepted in the High Court. In those circumstances it cannot be said that the plaintiff advanced entirely unmeritorious arguments in the proceeding.
[36] Successful applications for increased costs are properly limited to a small pool of cases. There is a high threshold for establishing that increased costs should be awarded. Given the different approaches to the merits of the plaintiff’s argument in
the High Court and Court of Appeal, it is fair to characterise the proceeding as one involving a difficult exercise of interpretation. I find that increased costs under r 14.6 are not justified.
[37] It is next necessary to consider whether the plaintiff’s rejection of the defendants’ Calderbank offer changes that preliminary view that this case is not one where increased costs would be appropriate.
Does the plaintiff ’s refusal of defendants’ Calderbank offer justify increased costs?
[38] The Court of Appeal observed in Bradbury v Westpac Banking Corp that “imprudent refusal of an offer of compromise … may justify increased costs under r 14.6(3)(b) [and] (c).”19 However, r 14.11 says at (1) “[t]he effect (if any) that the making of an offer under rule 14.10 has on the question of costs is at the discretion of the court.”
[39] Rules 14.10 and 14.11 (described in a previous case as “the Calderbank rules”) are independent of r 14.6.20 They allow the Court to take into account offers made to settle without prejudice as to costs, in this case the Calderbank offer. In Weaver & Anderson v HML Nominees Ltd, Katz J said:21
A successful Calderbank offer does not of itself give rise to an entitlement to increased or indemnity costs, as this remains at the Court’s discretion. There are good policy reasons, however, why the making of a successful Calderbank offer will often lead to an award of increased costs. Regard must be had to the factors in r 14.6, as with any increased costs application. Rule 14.6(3)(b)(v) provides that increased costs may be awarded where a party fails to accept an offer of settlement without reasonable justification with the result that they contribute unnecessarily to the time or expense of the proceeding or step in it. Each case is necessarily fact specific. The assessment of whether increased costs should be awarded, and the extent of any increase, can be impacted by a number of factors. These include (but are not limited to):
(a)the size of the offer relative to the actual costs of counsel;
19 Bradbury v Westpac Banking Corp [2009] NZCA 234, [2009] 3 NZLR 400 at [30]. However, see generally Minister of Education v James Hardie New Zealand [2018] NZHC 2960 at [7]; and Lepionka & Co Investments Ltd v Gibson Sheat [2023] NZHC 2745 at [27].
20 High Court Rules, r 14.11(2)(b); and see Aldrie Holdings Ltd v Clover Bay Park Ltd [2016] NZHC 1482 at [38].
21 Weaver & Anderson v HML Nominees Ltd [2016] NZHC 473 at [30] (footnotes omitted); see also Wilding v Te Mania Livestock Ltd [2018] NZHC 1506 at [191]; and Openyd Ltd v Lawrence [2019] NZHC 583 at [7]–[8].
(b)the amount of the claim;
(c)the reasonable expectations of the party that refuses the offer;
(d)the amount of preparation for trial already undertaken;
(e)whether the proceeding concerns an uncertain area of law;
(f)whether the parties were in a position to assess the merits when the offer was received;
(g)the information available to the party who receives the offer and the extent to which they can assess the offer.
(h)the timing of the offer;
(i)the conduct of the offeror.
[40] On 26 October 2022 the defendants’ solicitors made a Calderbank offer to the plaintiff’s solicitor to settle for $20,000. The offer remained open until 5 pm on 2 November 2022. The plaintiff did not accept this offer. The hearing began on 7 November 2022.
[41] The defendants also rely on a 15 November 2019 letter (initial letter) which their solicitor wrote to the plaintiff’s solicitors to outline the issues with the plaintiff’s potential claim against the defendants, before the proceeding was initiated. The initial letter set out detailed arguments as to why the plaintiff’s claim was flawed and explained the legal basis underpinning the defendants’ position. The defendants say the content of the initial letter broadly aligned with the analysis in the Court of Appeal judgment. They say this demonstrates that the crux of the plaintiff’s case was unmeritorious and the plaintiff was made aware of this several years before filing.
[42] The initial letter did not contain an offer of settlement but the defendants say it is crucial background to the October 2022 Calderbank offer.
[43] Several of the factors listed by Katz J in Weaver & Anderson and set out at [39] above weigh in the plaintiff’s favour, against an award of increased costs.
[44] In relation to (d) and (h), the offer was made at a late stage, less than two weeks before the hearing. A significant amount of trial preparation had already been
undertaken. Although the lateness of an offer is not determinative,22 this factor does support the reasonableness of turning down the offer.
[45] This case did involve an uncertain area of the law, so (c) is also relevant. While the law as to contractual misrepresentation and common mistake is well-settled, its application to the question of seismic capacity of a building is not.
[46] In relation to (b), the Calderbank offer was significantly lower than the plaintiff’s claim for losses of $1,041,164.25 which was initially upheld by the High Court.
[47] Indeed, if it were not for the initial letter, I would have had no difficulty finding that the late stage of the Calderbank offer, after a significant amount of trial preparation had already been undertaken, meant it was reasonable for the plaintiff to reject the offer, which was for a fraction of its total claim.
[48] The initial letter gives me pause for thought. The plaintiff was aware of what the defendants said were the flaws in its case at an early stage. The Calderbank offer makes it clear that the assessment had not changed despite evidence having been filed. By that point the plaintiff was in a better position to assess the offer. Factors (f) and
(g) therefore point in favour of an award of increased costs.
[49] The Court of Appeal did ultimately find for the defendants and they submit that the issues detailed in the Calderbank offer formed the core reasoning in the Court of Appeal judgment. On that basis, acceptance of the defendants’ offer, though a small amount, would have put the plaintiff in a better position than it is in now. However, as Brewer J found in Renner v Renner:23
The rejection of a settlement offer is either reasonable or unreasonable at the time the rejection is made. The reasonableness or unreasonableness of a rejection does not depend on the ultimate result of the hearing.
22 See Rodgers v Advanced Creative Technologies Ltd [2013] NZHC 1095, where a 33.3 per cent uplift was applied although the offer was made mid-trial.
23 Renner v Renner [2015] NZHC 2451 at [25].
[50] Sun v Peninsula Road Ltd is also relevant to this point. In that case, two months before the commencement of the trial, the plaintiffs offered the defendants
$3 million.24 The defendants initially succeeded at the High Court in obtaining
judgment in excess of $45 million, but this was overturned on appeal. The plaintiffs sought a 50 per cent uplift on costs. Gilbert J rejected this:25
I do not consider that any uplift is justified in the present case arising out of the defendants' rejection of this offer. The defendants had reasonable justification for rejecting the offer and did not contribute unnecessarily to the time or expense of the proceeding by doing so. This is demonstrated by the fact that the defendants initially succeeded in this Court in obtaining judgment for excess of $45 million. The plaintiffs' offer was late and little more than a ‘walk away’ proposal at that stage.
[51] Similarly, I conclude it was not unreasonable for the plaintiff in this case to reject an offer for $20,000 two weeks before a High Court hearing in which it successfully claimed $609,842.40, plus interest.
[52] Having regard to all of these factors, I am not persuaded that I should exercise my discretion under r 14.11. I decline to make an order for increased costs.
Disputed disbursement, expert’s fee: should mediation preparation be deducted from Mr Hunt’s fee?
[53] As the authors of The Law of Costs in New Zealand observe, “[t]he authorities are divided on whether a court can award costs against a party in relation to conduct connected with a mediation.”26 In Braeburn Dairies Ltd v McGregor & White Electrical Ltd, the plaintiff pulled out of a private mediation approximately one month prior to its scheduled commencement, believing the parties had differences prohibiting beneficial dispute resolution.27 The High Court awarded indemnity costs to the defendant, reflecting its wasted costs connected to the mediation. However, in Leaderbrand Produce Ltd v Danfoss (New Zealand) Ltd, the High Court found that it
24 Sun v Peninsula Road Ltd [2016] NZHC 3108 at [7].
25 At [9].
26 David Bullock and Tim Mullins The Law of Costs in New Zealand (LexisNexis, Wellington, 2022) at [4.19].
27 Braeburn Dairies Ltd v McGregor & White Electrical Ltd HC Dunedin CIV-2009-412-668, 16 December 2011 at [15]–[18].
lacked jurisdiction to take into account an unsuccessful party’s refusal to attend a mediation before trial as a factor justifying an award of increased costs.28
[54] In my view, those cases are distinguishable from the facts of this costs application. Although some of Mr Hunt’s fee comprises preparation for a mediation that did not eventuate, the material that he prepared (an estimate and report) was included in his brief of evidence adduced at trial. Given the inclusion of the evidence in this litigation, it is difficult to characterise conduct “connected with a mediation” in the same way as Braeburn and Leaderbrand. I conclude Mr Hunt’s expert fee disbursement is recoverable in full, excluding GST.
Disputed disbursement, expert’s fee: should a blanket deduction be applied to reflect unreasonableness of Mr Robertson’s fee?
[55] In Auckland Waterfront Development Agency Ltd v Mobil Oil New Zealand Ltd, Katz J set out a four-step approach to determining the reasonableness of expert fees:29
(a)Determine whether a particular attendance (or category of attendances) was reasonably necessary for the conduct of the proceeding. This requires a sufficient description of the particular work undertaken. A supporting affidavit from an independent expert practising in the same field may be necessary or appropriate when the quantum claimed is significant.
(b)Consider the amount of time claimed for the relevant attendance (or category of attendances) and whether it is reasonable, allowing for the significance and complexity of the particular work. A table showing the various steps taken and the costs associated with each step may assist.
(c)Consider the hourly rate charged for each author and whether that is reasonable, relative to the experience of that author and the complexity of the work undertaken.
(d)Consider any additional evidence which is relied upon to show that the rate charged is a reasonable one (or that the overall costs are reasonable). Again, in some cases (such as where the quantum claimed is particularly large) it may be necessary to file a supporting affidavit from an independent person practising in the same field as
28 Leaderbrand Produce Ltd v Danfoss (New Zealand) Ltd HC Auckland CIV-2006-404-6531, 19 June 2008 at [5]–[6].
29 Auckland Waterfront Development Agency Ltd v Mobil Oil New Zealand Ltd [2015] NZHC 470, (2015) 23 PRNZ 470 at [44] (footnote omitted). See also Bullock and Mullins, above n 26, at [6.5] and [6.6].
the relevant expert(s), deposing that the hourly rates claimed are appropriate and in accordance with industry standards.
[56] The balance of those four steps supports the recoverability of Mr Robertson’s expert fee disbursement in full, excluding GST.
(a)It was reasonably necessary for the defendants to adduce his evidence to support their defence.
(b)Mr Robertson charged for 14.25 hours in the invoice dated 24 March 2022, 6.25 hours in the invoice dated 26 April 2022, 3.75 hours in the invoice dated 30 May 2022, 7.5 hours in the invoice dated 16 June 2022, 14.5 hours in the invoice dated 5 August 2022, 4 hours in the invoice dated 5 September 2022, and 26.25 hours in the invoice dated 14 November 2022. This is a total of 76.5 hours, producing detailed evidence in a complex proceeding. No party has adduced evidence of reasonable timeframes for this type of work by a person in Mr Robertson’s position.
(c)Mr Robertson’s hourly rate is $420. Although high, this does not appear to be unreasonably out of proportion for a person of his expertise and skill in the complexity of this proceeding. I note that no evidence has been adduced as to industry standards or comparable hourly rates from either party.
(d)The defendants have not sought to rely on any additional evidence to show that the fee was reasonable.
[57] In any event, a blanket reduction of 25 per cent would lack a principled basis. The plaintiff has not provided or sought to rely on any evidence that suggests Mr Robertson’s fee is unreasonable, such as evidence about the industry standard rate in support of its assertion that the fee was unreasonable. In those circumstances, Mr Robertson’s expert fee is recoverable as a disbursement in full, excluding GST.
Result
[58]I make the following orders:
(a)That the plaintiff pay the defendants 2B scale costs inclusive of the third party notice and statement of claim, but exclusive of the steps relating to the interlocutory discovery application.
(b)The plaintiff is to reimburse the defendants for the third party’s costs (excluding the 50 per cent uplift sought by NZCEL from the defendants).
(c)The reductions sought to the defendants’ experts’ fees disbursements are declined.
Gwyn J
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