IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2013-404-003130 [2016] NZHC 473
BETWEEN
ANN-LOUISE EVELYN CHANTAL
WEAVER AND GRAHAM WILLIAM ANDERSON
Plaintiffs
AND
HML NOMINEES LIMITED First Defendant
HELEN MARTHA MOORE Second Defendant
Continued…
Hearing:
On the papers
Counsel:
T J Rainey and J Heard for plaintiffs D R Bigio and C I Hadlee for first and second defendants D J Barr and S S R Meares for third defendant N J Scampion for second third party and seventh third party
Judgment:
18 March 2016
JUDGMENT OF KATZ J [Costs]
This judgment was delivered by me on 18 March 2016 at 4:45pm pursuant to Rule 11.5 High Court Rules
Copy to: V Toon, Corporate Restructuring Limited, Auckland
WEAVER & ANDERSON v HML NOMINEES LIMITED & ORS [2016] NZHC 473 [18 March 2016]
AUCKLAND COUNCIL
Third Defendant
STONESCAPES LIMITED (IN LIQUIDATION)
First Third Party
FLEXCO (NZ) LIMITED
Second Third Party
ASHTON MITCHELL ARCHITECTS LIMITED (DISCONTINUED)
Third Third Party
BUILDING CODE CONSULTANTS LIMITED (DISCONTINUED)
Fourth Third Party
KELVIN LEONARD WALLS (DISCONTINUED)
Fifth Third Party
COOPER ROOFING COMPANY (DISCONTINUED)
Sixth Third Party
FLEXCO (NZ) LIMITED
Seventh Third Party
MOHAN ROOFING SERVICES LIMITED
Eighth Third Party
POINT CONSTRUCTION LIMITED (DISCONTINUED)
Ninth Third Party
STONESCAPES LIMITED (IN LIQUIDATION)
Tenth Third Party
JACKSON CLAPPERTON AND PARTNERS LIMITED (DISCONTINUED)
Eleventh Third Party
Introduction
[1] The plaintiffs, Ann-Louise Weaver and Graham Anderson, own a property in St Mary’s Bay, Auckland. They issued proceedings seeking to recover losses they allegedly suffered as a result of the failure of remedial work undertaken by the previous owner of the property, HML Nominees Limited (“HML”), in 2005 and
2006. HML is the corporate trustee of Helen Moore’s family trust. The house was originally built as Mrs Moore’s family home in 1997.
[2] On 28 August 2015 I delivered judgment in the proceedings (“Judgment”).1
The plaintiffs succeeded against Auckland Council (in tort) and HML (in contract) in respect of one of their major claims, relating to the defective stone cladding, but were otherwise largely unsuccessful. The Council succeeded in its third party claim against the stonemason, Stonescapes Limited (in liquidation) (“Stonescapes”). Third party claims against Flexco Limited, brought by the Council and Mrs Moore, both failed.
[3] I must now determine costs issues between the following parties: (a) the plaintiffs and the Council;
(b) Flexco and the Council;
(c) Flexco and HML/Mrs Moore; and
(d) Stonescapes and the Council.
[4] Costs issues between the plaintiffs and HML/Mrs Moore, and between
HML/Mrs Moore and the Council, have been resolved directly between those parties.
Costs as between the plaintiffs and the Council for the period prior to the
making of the defendants’ Calderbank offer
[5] On 20 November 2014 the defendants made a Calderbank offer to the plaintiffs, which was not accepted. It is therefore necessary 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 HML Nominees Ltd [2016] NZHC 473
Case
[2016] NZHC 473
Decision Date
CaseChat Overview and Summary
Weaver and Anderson, the plaintiffs, sought to recover losses they allegedly suffered from the failure of remedial work undertaken by the previous owner of the property, HML Nominees Limited. The High Court of New Zealand determined the costs issues between the parties, including the plaintiffs, HML, Auckland Council, and others. The court assessed the costs for the period up to the Calderbank offer, finding that the plaintiffs and the Council had roughly equal measures of success and failure. The court ordered costs to lie where they fell for that period. The court also considered the Calderbank offer, finding that the plaintiffs unreasonably rejected the offer and pursued a claim that lacked merit. As a result, the Council was awarded scale costs and a 50 per cent uplift for the period following the Calderbank offer. The court further assessed the costs liability of the Council, HML, and Mrs Moore to Flexco, awarding Flexco scale costs and increased costs against the Council. The court also ordered the plaintiffs to contribute to the Council's costs liability to Flexco. Finally, the court ordered Stonescapes to pay the Council's costs in relation to the third party claim.