HAMID V ENGLAND HC AK CIV-2009-404-003697

HAMID V ENGLAND HC AK CIV-2009-404-003697 29 November 2011IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2009-404-003697BETWEEN PIERS ANDREW THOMAS HAMID ASTRUSTEE OF PATH (NO.2) TRUST ANDBENJAMIN NEALE HAMID ASTRUSTEE OF PATH (NO.2) TRUSTFirst PlaintiffsAND PAMELA ANNE HAMID AS TRUSTEEOF PA BEARDSMORE FAMILY TRUSTSecond PlaintiffAND BRUCE ENGLANDFirst DefendantAND JOANNE MARY SUCKLING, KEVINMCDONALD TRUSTEE LIMITED ANDANTHONY RALPH PHILLIPSSecond DefendantsAND BARFOOT & THOMPSON LIMITEDThird DefendantHearing: On the PapersCounsel: M Thornton for First and Second PlaintiffsA Hooker for First and Second DefendantsR B J Hern for Third DefendantJudgment: 29 November 2011QUANTUM AND COSTS JUDGMENT OF WHATA JThis judgment was delivered by Justice Whata on29 November 2011 at 4.30 p.m., pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors:M Thornton, PO Box 91441, Victoria Street West, Auckland 1142A Hooker, PO Box 4, Albany Village, Auckland 0755McElroys, PO Box 835, Shortland Street, Auckland 1140[1] The plaintiffs apply for costs and disbursements as the successful litigant in this matter. The quantum of costs incurred is not disputed. The quantum of primary loss plus interest has also been largely agreed.[2] What is not agreed, and what is in dispute, is the portion that Barfoot & Thompson, the third defendant, ought to pay for costs.[3] Barfoot and Thompson submits that there should be a separate apportionment of liability for costs and disbursements as between the two unsuccessful defendants and that this should be on the same basis that the primary loss was found – namely Mr England 80 per cent and Barfoot and Thompson 20 per cent.[4] In support of this position Mr Hern cites the following passage from the judgment of Venning J at paragraph [29] of Body Corporate No. 189855 & others v North Shore City Council & others,1 wherein it is stated:[29] When considering the position of costs in relation to the situation of multiple defendants, the Court must assess the overall justice of the matter as between the parties concerned: Lane Group Limited v D I & Paterson Ltd[2000] 1 NZLR 129. In my judgment there must be some proportionality between the liability of the first and third (and fourth) defendants to the plaintiffs for costs that reflects the outcome and also reflects the overallresponsibility for the plaintiffs' losses.[5] The plaintiffs meet this contention by observing:(a) That the claims against Mr England and Barfoot and Thompson were the same in nature, namely both claims were brought under s 9 of the Fair Trading Act 1986.(b) The relative success against Barfoot and Thompson did not reflect a defect in the case against Barfoot and Thompson but rather reflected the particular features of the relationship between Barfoot and1 Body Corporate No. 189855 & others v North Shore City Council & others HC Auckland CIV-2005- 404-5561, 2 October 2008.Thompson and Mr England and the Court's assessment of their respective culpability for the Hamid's loss.[6] The point is also made that Barfoot and Thompson actively defended the claim by the Hamids and put the Hamids to the proof and actively participated in providing evidence and undertaking cross-examination.[7] The plaintiffs also submit that Barfoot and Thompson has already benefitedfrom the Court's apportionment, noting that had the matter been dealt with inaccordance with common law principles, Barfoot and Thompson would have been liable for the entire sum. Reference is also made to the approach to a portion of damages taken by Red Eagle Corporation Ltd v Ellis2 where a bankrupted third party's contribution to the loss was disregarded when the Court apportioned liability.[8] In this regard it is noted that Mr England now represents himself and I am advised by counsel that he has no assets or ability to meet the judgment.Costs assessment[9] The aim of a costs order is, as the Court of Appeal has said, to endeavour to do justice to both sides, bearing in mind all material features of the case.3[10] In achieving justice between the parties I consider that I must have regard to the following matters:(a) The role played by the respective defendants in the proceedings.(b) The outcome of the proceedings, including the apportionment of liability.(c) The general presumption that the successful litigant will get its costs.2 Red Eagle Corporation Ltd v Ellis [2010] NZSC 20 at [29]-[30].3 Packing In Limited (In Liquidation), formerly known as Bond Cargo Ltd v Chilcott (2003) 16 PRNZ 869 at [5].[11] As to the first matter, I observe that the cases presented by the defendants were focused on matters of particular importance to them, with the third defendant focusing on contesting the specific liability of the third defendant as an employer ofthe first defendant. Plainly, there were aspects of the first defendant's case that weresupported by the third defendant, but I am of the view overall that the third defendant exercised due care in not repeating or unnecessarily adding to the evidence or argument presented by the first defendant.[12] I respectfully join with Venning J when he says that there must be some proportionality between the defendants as to costs that reflects the outcome and alsoreflects the overall responsibility for the plaintiffs' losses. In the present case, as I have found, the primary actor in this was the first defendant, not the third defendant. While that does not provide a defence for the third defendant, the policy drivers for the purposes of allocation of damages should logically and as a matter of principle, apply to the apportionment of costs. Having said that, however, responsibility forthe plaintiffs' losses is not co-extensive with responsibility for the costs incurred by the plaintiffs. Notwithstanding the focus that the third defendant brought to its case, there were areas of overlap that in my view made its contribution to the overall costs of the plaintiffs greater than the 20 per cent that I apportioned for the purposes of a damages outcome.[13] While, I cannot be precise about the extent of the overlap, in my view thecontribution to the plaintiffs' costs was closer to the 35 per cent mark.[14] As to the third principle, that is self-evident. The plaintiff has been successful in its specific claim, at least partially so, against the third defendant. As I said in my judgment on costs in Mok and Ho v Bolderson4 the ordinary presumption is that a successful litigant will get its costs. But unlike Mok and Ho, this is a multi- defendant case and the overall responsibility for the costs incurred must, as I have said, be relevant.[15] On the foregoing basis, I therefore resolve costs as follows:4 Mok and Ho v Bolderson HC Auckland CIV-2010-404-007292, 9 August 2011.(a) Mr England shall be responsible for 65 per cent of the plaintiffs' costsand disbursements.(b) Barfoot and Thompson shall be responsible for 35 per cent of theplaintiffs' costs and disbursements.Quantum of loss[16] As foreshadowed, the quantum of loss is largely agreed as between the plaintiffs and the third defendant. That quantum is usefully summarised at paragraph 10 of the reply memorandum of the plaintiffs as follows:(a) DamagesLoss on sale 182,679.67PLUSLoss on rental paidLESSSavings on outgoings and interest earnedon sale proceedsLESS25% contributory conduct 25,764.75208,444.42(b) Interest@ 8.4% 24.10.09 to 30.6.11(643 days) = $47.97077063 per day 30,845.21@ 5% 1.7.11 to 26.9.11(88 days) = $28.55403013 per day 2,512.7533,357.96(c) Costs and disbursementsAs per previouis memorandum 64,949.36(d) General Damages 14,026.50GRAND TOTAL $320,778.24[17] Of that sum the third defendant accepts that its liability, excluding costs and disbursements, is $51,623.06.Final order[18] There shall be judgment in the sums specified at [17], with liability for:(a) Damages, Interest and General Damages apportioned 80 per cent to the first defendant and 20 per cent to the third defendant.(b) Costs and disbursements apportioned to 65 per cent to the first defendant and 35 per cent to the third defendant.[19] I note that there are slight arithmetic differences between the percentagecalculations based on the plaintiffs' summary and the third defendant's identifiedliability. I will leave it to the parties to resolve this in accordance with my ruling at [18]._________________________Whata J