Zygadlo v Earthquake Commission
[2016] NZHC 1699
•26 July 2016
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2013-409-1363 [2016] NZHC 1699
BETWEEN B & FA ZYGADLO
Plaintiffs
AND
THE EARTHQUAKE COMMISSION First Defendant (discontinued)
SOUTHERN RESPONSE EARTHQUAKE SERVICES LIMITED Second Defendant
Hearing: On the papers Counsel:
G D R Shand and J S Morriss for the Plaintiffs
R M Dixon for the First Defendant
C R Johnstone and R J Hargreaves for the Second DefendantJudgment:
26 July 2016
JUDGMENT OF NICHOLAS DAVIDSON J (as to costs)
A. INTRODUCTION
[1] Overall settlement has been reached between the parties, but they ask the court to determine costs.
[2] Mr and Mrs Zygadlo (the plaintiffs) seek orders for costs and disbursements against The Earthquake Commission (EQC) and Southern Response Earthquake Services Ltd (Southern Response). EQC and Southern Response resist an award
against them and seek costs from the plaintiffs.
ZYGADLO v THE EARTHQUAKE COMMISSION AND SOUTHERN RESPONSE EARTHQUAKE SERVICES LTD [2016] NZHC 1699 [26 July 2016]
[3] The plaintiffs commenced proceedings in August 2013 arising out of earthquake damage to their home in South New Brighton, Christchurch. The action was set down for a five day trial to begin on 7 March 2016. Settlement was reached prior to trial: with EQC in August 2015, and with Southern Response in early March 2016.
[4] The plaintiffs claim $52,918 in costs and $44,200.67 in disbursements (after factoring in the disbursements no longer claimed), from the first and second defendants in terms of Schedules 1 and 2 attached.
[5] The plaintiffs say that they have achieved substantial success by settlement as the result of the proceedings. They point to the settlement with EQC for a cap payment,1 and total payments by the two defendants of $499,626.71, substantially more than the initially assessed costs to remediate by EQC and Southern Response, before and after the commencement of proceedings.
[6] EQC says that it should not pay the plaintiffs’ costs, and instead claims certain costs against the plaintiffs for what it says is the expense caused it by the way the plaintiffs have conducted the litigation. Failing that argument, EQC says that the plaintiffs have claimed inflated costs, or should not be awarded costs which were not incurred in their personal capacity.
[7] Southern Response argues that it should not pay the plaintiffs’ costs. It claims costs against the plaintiffs, primarily on the basis that the plaintiffs have not obtained judgment and having discontinued proceedings, the presumption in r 15.23 of the High Court Rules should apply. Further, Southern Response says it was always willing to meet its liability if the claim was over cap, and it recognised that was the case before EQC reached that position.
[8] Both defendants say that the expert witness conferral, which was designed to expedite proceedings by clarifying the issues and bring early resolution, was
frustrated by the plaintiffs’ engaging then disengaging some experts.
1 Cap, over cap and under cap refer to the statutory maximum the EQC is bound to pay for earthquake damage.
[9] For reasons given I do not award costs against the plaintiffs and therefore do not schedule the defendants’ claims to costs against the plaintiffs.
B. THE NARRATIVE
[10] The proceedings concern a house in South New Brighton, Christchurch, in the main of breeze block construction with a timber-framed extension. The house was badly damaged in the Canterbury earthquakes of 4 September 2010 and
22 February 2011. Claims were accepted by EQC and Southern Response in principle, but both initially adopted the position that the property was repairable for an amount under the statutory cap.
Settlement with EQC
[11] EQC did not give an indication that the repairs would be over-cap until
24 October 2014, when it produced a scope of repair works in the sum of
$150,277.90. This figure was updated on 11 November 2014 to $171,866.77, although apparently not advised to the plaintiffs until 11 August 2015. In this
10 month period EQC considered the apportionment of damage to the property between the September 2010 and February 2011 earthquakes.
[12] Shortly after 11 August 2015, the plaintiffs settled for a payment of
$159,626.71, and proceedings were discontinued against EQC on 19 August 2015.
Position at setting down
[13] On 24 August 2015, the proceedings were set down for a five day trial to begin in March 2016. Southern Response’s position was that “in-scope” repairs would cost $227,237.
Settlement with Southern Response
[14] On 29 October 2015, Southern Response made a without prejudice offer of (in total) $403,000, although this did not address the issue of costs. Southern Response says that this offer was similar to that later accepted by the plaintiffs, who at various times sought a higher settlement, including $700,000 on
11 February 2016. The claim to be advanced at trial was for $941,550.30 plus
$50,000 general damages and interest.
[15] An update as to repair costs came in an Aurecon report dated
19 February 2016, a few weeks before trial, which put the cost of a new remediation strategy at $426,459.58.
[16] On 2 March 2016, the plaintiffs agreed to settle with Southern Response for
$340,000 on top of the amount paid out by EQC (a total of $499,626.71). This offer did not include costs, nor general damages, nor interest. On 22 March 2016 proceedings against Southern Response were discontinued, save as to costs.
C. SUBMISSIONS
Mr and Ms Zygadlo
[17] The plaintiffs’ primary argument is that they have achieved substantial success, and this should be reflected by an award of costs and disbursements in their favour. They maintain that by bringing these proceedings they have been able to secure payments from EQC of $159,626.71, and from Southern Response of
$340,000, substantially more than they would have received had they not done so.
[18] The plaintiffs submit that it does not matter that they did not recover all that they claimed. EQC finally settled at the statutory cap, and Southern Response substantially adjusted its position over time.
[19] The plaintiffs track the various positions advised by Southern Response from
3 October 2013 and assert that they secured an overall increase of $382,717.71, as the product of litigation.
EQC
[20] EQC submits that the plaintiffs should pay EQC’s own costs of $21,350.47 (being $3,980 scale costs and $17,370.47 disbursements).
[21] EQC, like Southern Response, submits that this is a case where r 15.23 should apply given discontinuance by the plaintiffs. It says the plaintiffs have to persuade the court that it is just and equitable that the presumption that costs are payable by the plaintiffs should not apply given their discontinuance. It accepts that the plaintiffs have achieved some success, by securing an over cap payment from
EQC, in accordance with the judgment in Earthquake Commission v Whiting,2 and
that ordinarily the court may consider the presumption to be rebutted on that basis. However, it submits that the present case is distinguishable from Whiting and the cases to which it refers, because here the plaintiffs have acted in a disqualifying manner.
[22] Even if the presumption in r 15.23 were to be rebutted, EQC says that the court should, in its discretion, refuse to award costs to the plaintiffs and should instead apply r 14.7, because the plaintiffs have contributed “unnecessarily to the time or expense of the proceeding or a step in it” in accordance with r 14.7(f) or (g).
[23] Failing its main argument EQC makes several submissions regarding the extent of costs, and against whom they should be awarded, if the court finds that the plaintiffs are entitled to some costs.
[24] It says that the plaintiffs have wrongly sought orders for costs against both defendants on the basis of their joint liability, but that the proceedings against it and Southern Response involved separate considerations. Furthermore, it says that its liability to the plaintiffs was met and settled prior to the plaintiffs incurring substantial costs in preparation for trial.
[25] For the same reasons that it claims costs against the plaintiffs, it denies that the defendants should pay costs and disbursements incurred by the plaintiffs in participating in the joint expert conferral process.
[26] Additionally, it submits that the plaintiffs have not themselves incurred all the costs and disbursements they claim. It points to the involvement of Claims
2 Earthquake Commission v Whiting [2015] NZCA 144.
Resolution Service Ltd (CRS), with which the plaintiffs entered a funding agreement and by which, so EQC says, CRS must be liable to pay costs, not the plaintiffs.
Southern Response
[27] Southern Response agrees with EQC that this is a case where the presumption in r 15.23 should apply given discontinuance, and that the plaintiffs should pay costs and disbursements for the expense incurred by Southern Response. It claims costs against the plaintiffs on a Category 2, Band B basis of $30,343.00 and disbursements of $48,398.75.
[28] Southern Response says that in no sense have the plaintiffs been successful by bringing proceedings. In the main, it relies on the fact that the plaintiffs’ claim against Southern Response to be heard at trial was for $941,550.50 with $50,000 for “general damages”, together with interest. This is to be measured against the settlement with Southern Response: $340,000 with no allowance for general damages or interest.
[29] Southern Response puts its increasing evaluations of the plaintiffs’ claim over time down to internal reviews and amendment to costings after receiving expert advice as a result of the joint engineers’ review, and communications with the plaintiffs directly.
[30] It says that even if the plaintiffs have achieved some measure of success, overall the proceedings have not expedited their claim. It argues that under their insurance policy, Southern Response can only make settlement once EQC has made a payment under the Earthquake Commission Act 1993. EQC formally maintained that the repairs were under cap until August 2015. Southern Response says that it made an offer to take over the plaintiffs’ claim against EQC under a deed of assignment on 5 June 2015, but that was refused. It says that the reason for this offer was that it realised the repairs would likely be over cap, and it wanted to prevent delay in the inevitable outcome caused by EQC remaining a party.
[31] Following EQC’s decision to make a cap payment, Southern Response took part in a settlement discussion on 29 October 2015. It says that at that meeting it
made a without prejudice offer to replace the internal and external breeze block walls, or pay the cash equivalent of doing so. This was rejected by the plaintiffs. Southern Response says that the terms of settlement reached on 2 March 2016, four months after this meeting, and immediately prior to trial, involved essentially the same offer. Without prejudice discussions are of course no basis for a costs determination unless privilege is waived.
[32] Southern Response make a conciliatory acknowledgement of Ms Zygadlo’s personal circumstances, in particular that she may not have been wholly to blame for what it terms an “unsatisfactory approach to her expert engineers”. This acknowledgement is not, however, reflected in quantification of the award it seeks.
[33] The defendants submit that the plaintiffs have acted throughout the expert engagements so as to cause unreasonable expense and delay. They cite the remarks of Wylie J when he awarded costs in the defendants’ favour that the plaintiffs seemed to be casting around to find an expert to suit their own views, and that they had put the defendants to additional and unnecessary expense.3
D. DISCUSSION
[34] The Court of Appeal has confirmed that there is no special regime altering the starting point for determining costs in earthquake-related proceedings of this kind.4
Success in the proceedings
[35] The parties are in sharp contest over whether or not the plaintiffs have achieved any measure of success by bringing proceedings.
[36] Southern Response says that the English and Welsh authority relied on by the
plaintiffs to establish “success” by bringing proceedings exist within a different costs regime.
3 Minute of Wylie J dated 5 May 2015 at [11]-[12].
4 Earthquake Commission v Whiting, above n 2.
[37] It does not say exactly how it differs, except that it is contradictory to the New Zealand High Court Rules. New Zealand has its own practice and procedure which should not reflect international authority or practice unless the court regards it as persuasive and apt.5
[38] The Court of Appeal judgment in Whiting reflected by this Court in Driessen6, reflects a conclusion that the plaintiffs achieved a measurable degree of success by bringing proceedings. Indeed, this was largely conceded by EQC. That the plaintiffs did not achieve the sum they claimed does not alter the fact that, had proceedings not been commenced, they would likely have had to consider a settlement substantially less than that achieved. I do not accept Southern Response’s
argument that the difference between its initial appraisal and the eventual settlement was wholly due to its internal revisions of the scope of works. It substantially moved its position over time, whether after internal revision or not. However, Southern Response did seek to assist the plaintiffs by taking an assignment of their claim against EQC, as it recognised that the claim was likely over cap before EQC did so. I consider this should be reflected in the incidence of costs and disbursements between EQC and Southern Response. Otherwise Southern Response says it resisted the much higher claim pleaded by the plaintiffs, to result in a more moderate, but still substantial settlement.
[39] The plaintiffs fell well short of what they claimed but they succeeded in good part. I recognise the merit of the submission for Southern Response that the court should bring to account that the plaintiffs received less than a third of what they had claimed; failed to achieve a rebuild of the property with upgraded foundations; and abandoned two heads of claim. Pressing a claim on a basis which falls away may in some cases be reflected in the costs awarded, but the Court should be slow to downgrade a costs claim by plaintiffs who are working in an area of considerable uncertainty, with differing expert views and having to make very tough decisions about their own home, and their future. A further and relevant consideration is submitted to be that the plaintiffs delayed settlement of their claim through changing
engineers four times.
5 Driessen v Earthquake Commission [2016] NZHC 1048 at [25].
6 Driessen v Earthquake Commission, above n 5.
Reduction in costs and disbursements claimed - the engagement of experts by the plaintiffs
[40] The plaintiffs’ conduct during this part of the proceedings is the main ground on which the defendants say the justice of the case supports an award of costs in their favour, and negates or blunts the plaintiffs’ claims to costs.
[41] EQC submits that the plaintiffs first provided costed scopes of works for repair and rebuild of the house in February 2014, which preceded the expert evidence on which they ought to have been based. Then the plaintiffs provided an engineering report by Mr Csiba, followed by his amended report.
[42] Initially, the plaintiffs engaged Mr Csiba. However, when the time came for an on-site meeting of the parties’ experts, a Mr Stockwell attended. The defendants say that within a week of the meeting, Mr Stockwell advised that he was no longer involved. The defendants’ experts then completed the required report without expert involvement for the plaintiffs. Mr Stockwell’s engagement was apparently terminated because he did not agree with the position taken by the plaintiffs.
[43] The process had to begin again: at a case management conference on
5 May 2014, Wylie J directed the plaintiffs to engage another expert to respond to the defendants’ expert report, compile their own report, and liaise with the defendants’ experts to produce a joint statement.
[44] The second attempt at joint expert conferral also fared poorly. The plaintiffs engaged a Mr Lust, who with the defendants’ experts attended the site and compiled a joint statement. The defendants say that this involved them incurring the expense of witnesses again attending the site and putting together a report which they had already done when Mr Stockwell was involved. In the end, the plaintiffs did not agree with the outcome of the further report, and apparently no longer instructed Mr Lust.
[45] Southern Response’s position is that the plaintiffs caused delay and put the defendants to additional cost for most of the reasons advanced by EQC, adding
Wylie J’s comments in his Minute dated 5 May 2015, where he said that it is “not for the plaintiffs to direct how experts should present their views, or what views they should take at a joint inspection”. It submits that the plaintiffs should have stuck to their original engineer “instead of changing horse four times”, and Mr Csiba’s evidence as a junior engineer with about five years engineering experience in Europe was not supplementary to that of Mr Clark, a member of IPENZ.
[46] Counsel for the plaintiffs say in reply that Ms Zygadlo was not bound to accept the position of engineers engaged by her. Mr Csiba was overseas at the time of the first joint expert meeting so could not attend. Mr Stockwell, it is said, “chose to be hostile” towards the position the plaintiffs considered appropriate. Mr Lust was engaged to replace Mr Stockwell. Counsel says that the plaintiffs were entitled to decide whether his remedial strategy met the terms of the policy.
[47] The question remains what effect, if any, the plaintiffs’ conduct during the expert conferral process and otherwise in the engagement of experts should have on this costs award. In part I have addressed this under “success in the proceedings” above. It is a given in this type of litigation that experts are engaged, and may come and go. This is a normal incident of deciding what case to mount, going head to head with expert evidence from another party. In a case like this the plaintiffs start from scratch. A party does not have to accept an expert’s advice and there may be good reasons why an expert’s retention is set aside. The party retaining an expert is on something of a journey, evaluating an expert’s opinion against their own lay perspective, and that of experts for opposing parties. Unless there is evidence of some improper, unreasonable or prejudicial conduct, costs will be awarded, but usually not if an expert is not relied on at all, or costs have in some way been unnecessarily incurred.
[48] A party cannot usually expect to recover the full cost of expert engagement which does not in the end form part of their case, or puts other parties to cost on a false lead. Where much of the expert evidence supports a position later abandoned that is a proper consideration to bring to account. Exceptions will apply where expert inquiry is warranted to formulate a position, or an expert’s advice is properly
taken but to save duplication is not used. These are all questions of fact, and not easily addressed even on the very extensive papers filed.
[49] I consider the appropriate response to this unsatisfactory marshalling of the expert position for the plaintiffs should be reflected in a reduction in costs and disbursements, otherwise allowed, and reflected in Schedules 3 and 4 to this judgment. The wavering position did cause the defendants some unnecessary costs and disbursements. I therefore take a global view and reduce the costs and disbursements award which otherwise would have applied.
Costs not incurred by plaintiffs ‘personally’
[50] EQC says that the only available inference from the terms of the agreement entered into by the plaintiffs and CRS is that the liability for paying legal costs associated with the claims rested with CRS. The same is said to be true for most of the disbursements claimed. It says that pursuant to r 14.2(f), the plaintiffs should not be entitled to costs which they have not themselves incurred.
[51] Unless the funding arrangement is impugned I cannot see any basis to adjust a costs award otherwise appropriate. Litigation funding brings with it risks and rewards. Costs are part of that and there should not be two regimes depending on funding of a party. However funded, the same costs principles apply.
Apportionment of costs between EQC and Southern Response
[52] EQC submits that it should be liable only for costs incurred before
11 August 2015. That was the date on which it advised that it would make an over cap payment to the plaintiffs. Proceedings were discontinued a week later without the plaintiffs incurring any scale costs or disbursements in the interim.
[53] It is settled law in New Zealand that costs in respect of discontinued earthquake proceedings should only be awarded against EQC up until the point at
which EQC makes a cap payment accepted by the plaintiffs.7 At the point that
7 Whiting v Earthquake Commission [2014] NZHC 1736; Driessen v Earthquake Commission, above n 5 at [33].
proceedings were discontinued against EQC, the plaintiffs’ claim was for
$46,831.13, comprised of $25,074 costs, and $21,757.13 in disbursements.
[54] EQC says that it should not be liable for the plaintiffs’ claimed costs in respect of items 30, 31 and 33 in the Schedules, as these involved trial expenditure incurred after proceedings were discontinued against EQC.
[55] EQC also says that it should bear only 50% of the costs incurred up until discontinuance. Its liability was not joint and several with that of Southern Response: it was obliged to assess and make a cap payment (if applicable), and the remainder of the claim was to be met by Southern Response. The costs award in this judgment reflects EQC’s proposition, which I consider to be sound in principle and to accord with authority.8 However, I consider it is appropriate to reflect that significant cost was incurred by the plaintiffs while EQC delayed its decision until October 2014, and not formally advising its position until August 2015. EQC should
therefore meet a greater proportion of the pre-August 2015 costs and disbursements reflected in Schedules 3 and 4.
The defendants’ claimed costs and disbursements
[56] I have signalled my conclusion in this regard.
[57] I do not consider the plaintiffs to have been wholly or substantially unsuccessful by bringing and continuing the proceedings. This is not a case where the presumption in r 15.23 applies in the defendants’ favour. The plaintiffs were justified in bringing proceedings to progress their claim. Discontinuance was a function of the plaintiffs agreeing to settlement on better terms than they would likely have received without bringing proceedings.
[58] EQC submits that under r 14.7, this court should do two things: first to refuse to award costs to which the plaintiffs would otherwise be entitled, and to make a costs award in favour of EQC, which I have rejected above. I otherwise observe that
I do not consider the latter to be within the ambit of r 14.7. The rule addresses an
8 See Whiting v Earthquake Commission, above n 7, at [46]; Van Limberg v Earthquake
Commission [2014] NZHC 2764 at [16]; Driessen v Earthquake Commission, above n 5, at [34].
award of costs in favour of a particular party. The language of the rule, particularly “costs otherwise payable” presupposes such an award. Therefore, the most that EQC could secure under this rule would be either a substantial reduction in costs or a refusal to award any costs at all to reflect the plaintiffs’ alleged behaviour. I do not consider r 14.7 to create an independent route by which the defendants can obtain an award of costs in their favour.
[59] I therefore do not consider the primary argument of the defendants, namely that they should each be entitled to costs against the plaintiffs, to have been made out.
Adjustment to costs and disbursements claimed
[60] While I do not consider the plaintiffs’ conduct in the proceedings to have been wholly disqualifying of their entitlement to an award of costs, I do not ignore their conduct of the proceedings in coming to a final assessment.
[61] I have made adjustments to the costs and disbursements claimed reflecting my judgment as to appropriate banding under the High Court Rules and the days, or part days, applicable. I have exercised my discretion on the information before me in coming to judgment. I have assessed what I consider reasonable categorisation for the various steps. I have weighted costs against EQC before settlement was reached with it, on a two-thirds/one-third basis, and adjusted down some experts’ fees for the plaintiffs in the round as in my view they should not all be visited on the defendants.
E. QUANTIFICATION OF COSTS AND DISBURSEMENTS AWARD
Plaintiffs’ costs and disbursements
[62] The plaintiffs’ claim costs largely on a Category 2 Band B basis. The exceptions are for items 30 and 33 (witness statement and hearing preparation), for which the plaintiffs claim a 5 day allowance on a Band C basis. For item 30, the plaintiffs say 6 statements of witness evidence-in-chief were served, of which 5 were expert witness statements. For item 33, the plaintiffs point to a 5 day hearing and the
fact that settlement occurred so close to trial that the majority of trial preparation had already been done. I should indicate now that I see no basis to depart from Band B. These are not complex briefs to prepare, nor should their preparation have been of such length as to warrant Band C.
[63] They claim disbursements, all of which are said to comply with r 14.12, being specific and reasonably necessary to the proceeding, and reasonable in amount. I conclude that some of the expert fees do not meet these tests, and an overall adjustment is made.
[64] My conclusions are reflected in the attached Schedules. It is not possible to be more precise where there is underlying evidential contest, yet judgment is to be reached on the papers.
F. DISPOSITION
[65] By this judgment:
It is ordered that EQC pay to the plaintiffs the sum of:
· $7,163.25 costs; and
· $5,047.02 disbursements.
[66] It is ordered that Southern Response pay to the plaintiffs the sum of:
· $16,326.00 costs; and
· $28,965.56 disbursements.
[67] If there is any error of computation identified which is of significance, then leave is reserved for the matter to be referred back to the court.
………………………………………
Nicholas Davidson J
Solicitors:
Grant Shand, Christchurch for the Plaintiffs
[First Defendant discontinued]
Wynn Williams, Christchurch for the Second Defendant
SCHEDULE 1
Costs claimed by plaintiffs
Item Description Cat Days Rate No. Total 1 Commencement B 3 $1,990 1 $5,970.00 10 Preparation for first CMC B 0.4 $1,990 1 $796.00 11 Filing memoranda for CMC B 0.4 $1,990 5 $3,980.00 11 Filing memoranda for CMC B 0.4 $2,230 1 $892.00 13 Appearance at CMC B 0.3 $1,990 3 $1,791.00 13 Appearance at CMC B 0.3 $2,230 1 $669.00 20 Discovery B 2.5 $1,990 1 $4,975.00 21 Inspection B 1.5 $1,990 2 $5,970.00 30 Preparation of briefs C 5 $1,990 1 $11,150.00 31 Plaintiff’s preparation of
bundle, etc
B 2.5 $1,990 1 $5,575.00 33 Preparation for hearing C 5 $1,990 1 $11,150.00 Total $52,918
SCHEDULE 2
Disbursements claimed by plaintiffs
No. Description Total 1 Certificate of title: Invoice not provided $5.95 2 Service fee: Invoice not provided $100.00 3 Statement of claim filing fee [no longer claimed] 4 Amended statement of claim filing fee [no longer claimed] 5 8D Project Management, Report (Pavol Csiba): Invoice to
Ms Zygadlo dated 24 February 2014
$4,025.00 6 Property Fox Limited (Mike Stockwell) – Invoice to CRS
dated 21 March 2014
$1,069.50 7 8D Project Management, Costing – invoice to
Ms Zygadlo dated 31 Jan 2014 ($4,784)
$4,784.00 8 Endel Lust: Invoice dated 1 October 2014 ($690) and statements to Ms Zygadlo dated
15 February 2012 ($575) and 2 July 2014 ($874), each addressed to Ms Zygadlo.
$2,139.00 9 John Johnstone: invoice dated 18 June 2015 ($5,904.68), superseded by invoice from CIANZ Ltd dated 9 Mar 2016 ($11,176.85), each addressed to CRS – Earthquake Services Ltd $11,176.85 10 EQ East: Invoice to Ms Zygadlo dated
26 Oct 2012 ($2,254)
$2,254.00 11 CGW: Invoice to Ms Zygadlo dated
30 Nov 2015
$6,860.716 12 Grant Hunt: Invoice to Grant Shand dated
18 Dec 2015
$7,310.136 and additional * $884.64 13 Davie Lovell-Smith: statement to Grant Shand dated 29 Jan
2016
$3,590.88 Total (excl fees no longer claimed) $44,200.672
* Additional invoice not sighted.
SCHEDULE 3
Costs Award
Costs are awarded applying principles and findings in this judgment; and adjusted as the court thinks fit for banding and days / part days
Item Costs claimed by
Plaintiffs
Costs Award against
EQC
Costs Award against
Southern Response
1 $5,970 2/3 $3,980.00 1/3 $1,990.00 10 $796 2/3 $530.00 1/3 $266.00 11(a) $3,980 2/3 $2,653.00 1/3 $1,327.00 11(b) $892 $00.00 $892.00 13(a) $1,791 }
} $398.00
}
} $1,373.00
13(b) $669 20 $4,975 $995.00 $995.00 21 $5,970 $995.00 $995.00 30 $11,150 $00.00 $3,980.00 31 $5,575 $00.00 $3,980.00 33 $11,150 $00.00 $5,970.00 Totals $9,551.00 $21,768.00 Less 25 per cent for response to plaintiffs’ experts’ position. Totals $7,163.25 $16,326.00
Some costs up to 11 August 2015 are apportioned 2/3 EQC and 1/3 Southern Response except where there is a basis to address differently.
Item 1:
2/3 EQC and 1/3 Southern Response apportionment.
Item 10:
2/3 EQC and 1/3 Southern Response apportionment.
Item 11(a):
Five Memoranda x 0.4 days claimed – not to include Memorandum of 2 May 2014 as costs
awarded by Wylie J. 2/
3
EQC and 1/3
Southern Response apportionment.
Item 11(b):
Claim for memorandum filed after 11 August 2015. 0.4 days $892 for Southern Response.
Items 13(a) and (b):
Appearances at case management conferences. Four conferences, two conferences took
place before 11 August 2015. For one such conference costs awarded by Wylie J. Scale
costs for the first case management conference on 31 October 2013 of $597, 2/3 EQC and
1/3 Southern Response, and allowance for other conferences.
Item 20:
Discovery. Plaintiffs seek Band B. EQC says band A because of informal discovery and only
22 documents discovered while EQC in the proceeding. One day assessed overall, ½ at
Band B for EQC ½ for Southern Response.
Item 21:
Inspection. EQC says two allocations have been sought because of two defendants. Separate allocations are not appropriate. Plaintiffs claim 1.5 days but a reasonable time to complete inspection of what was discovered is one day.
Item 30:
Post 11 August 2015. 2 days allowed.
Item 31:
Post 11 August 2015. 2 days allowed.
Item 33:
Post 11 August 2015. 3 days allowed.
SCHEDULE 4
Disbursements Award
Disbursements are awarded applying principles and findings set out in this judgment;
and adjusted as the court thinks fit
Item Disbursements claimed by Plaintiffs Disbursements Award against EQC Disbursements Award against Southern Response 1 $5.95 $2.97 $2.97 2 $100 $00.00 $00.00 3 [no longer claimed] $00.00 $00.00 4 [no longer claimed] $00.00 $00.00 5 $4,025 }
}
}
}
} $5,044.05
} after 50%
} discount
}
}
}
}
}
}
} $5,044.05
} after 50%
} discount
}
}
6 $1,069.50 7 $4,784 8 $2,139 9 $5,904. 68 10 $2,254 11 $6,860.716 $00.00 $6,860.716 12(a) $7,310.136 $00.00 $7,310.136 12(b) $884.61 $00.00 $884.64 13 $3,590.88 $00.00 $3,590.88 *14 $5,272.17 $00.00 $5,272.17 Totals $5,047.02 $28,965.562
Item 1:
Cost incurred.
Item 2:
No proof of service fee.
Item 3: Nil.
Item 4:
Nil.
Items 5 to 10: (grouped before discounting 50 per cent) as part of global award. Separate
CRS component post August 2015 $5,172.00 (Item 14).
Item 11:
CGW (Mr Clark). Mr Clark did not attend joint experts’ meetings; however, a chartered engineer qualified to give engineering evidence.
Item 12(a):
Allowed.
Item 12(b):
Allowed.
Item 13:
Allowed.
*Item 14:
CRS post August 2015.
5
3
0