Tugaga v Westend Painters Limited - [2017] NZHC 2475

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-2294

CIV-2016-404-3008 [2017] NZHC 2475

BETWEEN
FIONA TUGAGA

Appellant

AND

WESTEND PAINTERS LIMITED First Respondent

LEE TERRENCE DONALD Second Respondent

Hearing: On the papers

Counsel:

DA Cowan for appellant
SJ Neville for respondent

Judgment:

10 October 2017

JUDGMENT OF FITZGERALD J [As to costs]

This judgment was delivered by me on 10 October 2017 at 2:30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: DA Cowan, Auckland
Ellis Gould, Auckland

Tugaga v Westend Painters Limited [2017] NZHC 2475 [10 October 2017]

Introduction

[1] In my substantive judgment dated 1 September 2017,1 I dismissed the appellant’s appeal, and quashed the District Court judgment on the (scaffolding) counterclaim, and entered judgment in favour of the first respondent for a sum slightly lower than in the District Court. I also upheld the first respondent’s cross- appeal on the question of interest.

[2] At the conclusion of my judgment, I indicated my preliminary (but non- binding) view that costs ought to follow the event in the ordinary way, on a 2B basis. This view was given in the hope of encouraging the parties to reach agreement on costs, without further costs being incurred arguing about costs. Unfortunately, the parties have not been able to agree on costs and memoranda have been filed.

Submissions

[3] Only the first respondent seeks costs, there being no separate claim advanced by the second respondent. Save for one step in the proceeding, the first respondent seeks costs on a Category 2B basis. Some adjustments are proposed to time allocations for particular steps, to reflect the particular facts of this case.

[4] The exception referred to in the preceding paragraph is that the first respondent seeks costs in relation to step 56 of sch 3 to the High Court Rules 2016 (the time allocation for the preparation of written submission on an appeal) on a band C basis (i.e. rather than band B), though reduced from the allocated time for band C of 6 days to 4 days.2

[5] Ms Neville, for the first respondent, submits that given the scope of the appeal issues and the volume of materials file on appeal, allocating costs to this particular step on a band C basis is appropriate.

[6] Mr Cowan, for the appellant, responsibly accepts that costs ought to follow the event (in terms of costs being awarded to the first respondent), and that there is

1 Tugaga v Westend Painters Ltd [2017] NZHC 2130.
2 The time allocation under band B is 3 days. Accordingly, the proposed time allocation of 4 days sits somewhere between bands B and C.

no good reason to depart from that general principle in this case. However, while in agreement that the proceedings are appropriately categorised as Category 2 for cost purposes, Mr Cowan submits that not all steps should be categorised as band B for cost purposes, and opposes 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.

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Details

Case: [2017] NZHC 2475
Decision Date: 10 October 2017

CaseChat Overview and Summary

In the case of Tugaga v Westend Painters Limited, the appellant, Fiona Tugaga, appealed against a District Court judgment in favour of the first respondent, Westend Painters Limited, regarding a dispute over scaffolding services. The court had to determine the costs associated with the appeal. The legal issues revolved around the appropriate categorisation of the proceeding for cost purposes and the allocation of costs for specific steps in the proceeding, particularly the preparation of written submissions on the appeal. The court decided that the proceeding should be categorised as Category 2, and while most steps should be allocated on a band B basis, certain adjustments were necessary. The court rejected the first respondent's request for a band C allocation for the preparation of written submissions on appeal, finding that the appeal, though broad, was not particularly complex. The court also made specific adjustments to the time allocations for certain steps, resulting in a total costs and disbursements award in favour of the first respondent of $13,883.00.

Orders