Thodey v Che Style Limited - [2021] NZHC 1323

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2019-409-000076

[2021] NZHC 1323

BETWEEN
PETER LEONARD THODEY

First Plaintiff

AND

SUSAN ANNE THODEY

Second Plaintiff

AND

PETER LEONARD THODEY, SUSAN ANNE THODEY and TIMOTHY JOHN

THODEY as trustees of the PETER THODEY FAMILY TRUST

Third Plaintiffs

AND

SUSAN ANNE THODEY, PETER

LEONARD THODEY, TIMOTHY JOHN
THODEY as trustees of the HOLLICK FAMILY NO. 2 TRUST
Fourth Plaintiffs

AND

CHE STILE LIMITED

First Defendant

AND

ADAM VAN ROEVAN

Second Defendant

AND

JOHN GAVIN CONSTRUCTION LIMITED

Third Defendant

AND

TONY HILL

First Third Party

AND

STYLISH TILES LIMITED

Second Third Party

AND

SUZANNE TURLEY LANDSCAPES LTD

Third Third Party

AND

SUZANNE DAWN TURLEY

Fourth Third Party

THODEY v CHE STILE LTD [2021] NZHC 1323 [8 June 2021]

AND
SOUTHERN CROSS TILING LIMITED

Fifth Third Party

AND

ISAAC WINDSOR

Sixth Third Party

Hearing: On the papers

Counsel:

D J S Parker and D A Fry for First and Second Defendants J Eckford for Third Defendant

K M Graham for First Third Party

Judgment:

8 June 2021

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 8 June 2021 at 2.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Introduction

[1] The first and second defendants and the third defendant (the defendants) made claims against the first third party (Mr Hill) in this proceeding. They have now discontinued their claims.

[2] In reliance upon r 15.23 of the High Court Rules 2016, Mr Hill seeks an award of costs against the defendants.

[3] Primarily the defendants argue that no costs should be awarded as their claims had merit and Mr Hill has benefited from a settlement of the litigation in which the defendants absorbed their own costs to achieve finality.

Background

[4] The first and second named plaintiffs (the Thodeys) purchased a property in Queenstown in 2011 (the property). They entered into an agreement with the third defendant as head contractor, to build a house on the property. The house was built during 2013 and 2014. The first defendant was engaged by the third defendant to undertake exterior tiling at the property. The second defendant is a director of the first defendant.

[5] In 2018, the Thodeys became aware of defects in the exterior tiling at the property. They claimed the defects were caused by inadequacies in the workmanship in the laying of the substrate and the tiles.

[6] On 11 February 2019, the Thodeys filed a statement of claim against the defendants. They did not, and have never, sought relief from Mr Hill in this proceeding.

[7] The defendants joined a suite of third parties including Mr Hill. Broadly, it is alleged Mr Hill, acting in his personal capacity, was either the Thodeys’ representative or project manager for the tiling work and failed to perform his duties with proper care and skill. The defendants sought contribution from Mr Hill as either a joint or

concurrent tortfeasor. The…

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 Thodey v Che Style Limited

Details

AGLC: Thodey v Che Style Limited [2021] NZHC 1323
Case: [2021] NZHC 1323
Decision Date: 8 June 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Thodey v Che Style Limited involved claims by the Thodey family against various defendants and third parties arising from defects in exterior tiling at their Queenstown property. The first and second defendants, along with the third defendant, had made claims against the first third party, Mr. Tony Hill, but later discontinued those claims. Mr. Hill sought an award of costs against the defendants under Rule 15.23 of the High Court Rules 2016, which provides that a plaintiff who discontinues a proceeding against a defendant must pay costs to the defendant unless the defendant otherwise agrees or the court otherwise orders. The defendants argued that the claims had merit and that it was unjust for Mr. Hill to benefit from the settlement without contributing to it. The court found that Rule 15.23 created a presumption in favour of awarding costs to a defendant against whom a proceeding has been discontinued, but this presumption could be displaced if it was just and equitable not to apply it. The court concluded that Mr. Hill was entitled to costs as he had consistently disputed the claims against him and it would not be reasonable to expect him to compromise his defence and contribute to a settlement. The court awarded Mr. Hill costs of $19,837 and reasonable disbursements of $1,399.81.

The final orders were that the defendants pay Mr. Hill's costs in the sum of $19,837, together with reasonable disbursements in the sum of $1,399.81. The defendants were also ordered to pay interest on the amounts awarded from the date of the judgment until the date of payment.

Orders