ANN-LOUISE EVELYN CHANTAL WEAVER AND GRAHAM WILLIAM ANDERSON Appellants
AND
AUCKLAND COUNCIL Respondent
Hearing:
15 March 2017
Court:
Brown, S France and J Williams JJ
Counsel:
T J Rainey for Appellants D J Barr for Respondent
Judgment:
31 July 2017 at 3.30 pm
JUDGMENT OF THE COURT
AThe appeal is allowed in part. The order that costs up until 20 November 2014 are to lie where they fall is set aside. An order that the respondent is to pay the appellants scale costs on a band 2B basis up to 20 November 2014, less 50 per cent, is substituted.
BThe appeal is otherwise dismissed.
CThe cross-appeal is allowed. The order that the respondent is entitled to recover a contribution to Flexco’s costs of $16,318 from the appellants is set aside. An order directing that the respondent is entitled to recover a contribution to Flexco’s costs of $48,954 from the appellants is substituted.
DCosts are to lie where they fall on the appeal and cross-appeal.
The appellants own a leaky home in Auckland. They sued, among other people, the vendor (HML Nominees Ltd) and the Auckland Council (the Council). Before Katz J, the appellants succeeded against the Council, but only to about half the pleaded loss.[1] This was significantly less than an amount offered jointly by the defendants and certain third parties in a Calderbank letter about three months before trial.
In a separate judgment Katz J then ordered that:[2]
(a)costs as between the appellants and the Council for the period prior to the joint Calderbank offer should lie where they fall;[3]
(b)the appellants were to pay the Council costs, including a 50 per cent uplift, for the period post the Calderbank offer;[4]
(c)the Council was to pay scale costs with a 50 per cent uplift to Flexco (NZ) Ltd (Flexco), a third party it had joined but against which it failed;[5] and
(d)the Council was entitled to recover, in essence, a one-third contribution from the appellants in relation to the Flexco award.[6]
[4]In the sum of $52,237.50 plus disbursements of $15,274.76: at [34].
[5]In the sum of $48,954.00: at [66(b)].
[6]At [72].
In this appeal and cross-appeal, the appellants challenge the awards made against them, and the Council challenges one aspect of the award in its favour.
The appellants appeal on the grounds that:
(a)the Judge erred in awarding costs in favour of the Council:
(i)by analysing costs in two stages: pre- and post-Calderbank offer;
(ii)in relation to costs pre-Calderbank offer, by awarding costs against them when they were in substance the successful party; and
(iii)by uplifting costs for the post-Calderbank offer period; and
(b)the Judge erred in ordering the appellants to contribute to the Council’s costs liability to…
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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AGLC
Weaver v Auckland Council [2017] NZCA 330
Case
[2017] NZCA 330
Decision Date
CaseChat Overview and Summary
In Weaver v Auckland Council, the Court of Appeal addressed an appeal and cross-appeal regarding costs in a complex litigation involving a leaky home. The appellants, Ann-Louise Evelyn Chantal Weaver and Graham William Anderson, sued the Auckland Council for negligence in issuing building consents and code compliance certificates, among other claims. The substantive judgment found the Council liable for part of the cost of remediating the property and ordered the Council to pay costs to the appellants, including a contribution to the costs liability to a third party, Flexco. The appellants challenged the costs orders, and the Council cross-appealed on the basis that the appellants should be required to pay more in costs to Flexco. The Court of Appeal allowed the appeal in part, reducing the costs award against the appellants for the period prior to a Calderbank offer, and allowed the cross-appeal, increasing the contribution to Flexco’s costs. The Court held that while the appellants had some measure of success, the costs awarded to them should be reduced because the time and resources necessary for the respondent to meet ultimately unsuccessful arguments significantly increased its costs. The Court also found that the appellants should be liable for all of the Council's liability to pay Flexco costs, including the 50 per cent uplift, because they chose not to heed the Council's warning about the unlikelihood of success in the third party claim.