BODY CORPORATE NO. 189855 AND ANOR V NORTH SHORE CITY COUNCIL AND ORS HC AK CIV 2005-404-005561

BODY CORPORATE NO. 189855 AND ANOR V NORTH SHORE CITY COUNCIL AND ORS HC AK CIV 2005-404-005561

The plaintiffs failed to establish the special reasons required to displace an advance costs categorisation under r 48(2); costs remain category 2. Time bands were allocated so initial interlocutory attendances attract band C with subsequent repetitive attendances B, and document inspections for each defendant justify C. Expert fees and other disbursements are recoverable to the extent they meet r48H criteria, but the court reduced fees where experts had dual roles (50% for Mr O'Sullivan). Costs liability among multiple defendants is apportioned proportionally to reflect differing degrees of success and responsibility (third and fourth defendants liable for 10% of plaintiffs' costs and...

Citation
openlaw-e8f91dc3_280e_40da_b793_5c29f4f34c22.pdf
Parties
First Plaintiff: BODY CORPORATE NO. 189855; Second Plaintiff: PAULINE LOUISE HOUGH & ORS; First Defendant: NORTH SHORE CITY COUNCIL; Second Defendant: STEPHEN FRANCIS SMYTHE; Third Defendant: PATRICK JAMES O'HAGAN; Fourth Defendant: CENTRE OF ATTRACTION LIMITED (FORMERLY O'HAGAN INDUSTRIES LIMITED) (IN LIQUIDATION); Fifth Defendant: JOSEPH WALDEN; Sixth Defendant: STACK NZ LIMITED; Seventh Defendant: ANDREW PLASTERING CO (1994) LIMITED; First Third Party (discontinued): ALAN MAXWELL GRANT; Second Third Party (discontinued): BARRY GLENN BRACEWELL
Court
High Court
Jurisdiction
New Zealand
Judgment Date
2 October 2008
Procedural Posture
Civil (leaky Building / Contractual and Tort Claims) / Costs Judgment (post‑trial)
Outcome
Application to reclassify costs to category 3 refused; costs fixed and apportioned as detailed below; time bands and disbursement recoverability determined; partial reductions of specific expert fees ordered; Bullock order made in favour of fifth and sixth defendants allowing partial recovery from first defendant.
Legal Topics
Costs Categorisation (rule 48), Time Bands, Expert Witness Fees and Disbursements, Apportionment Between Multiple Defendants, Bullock/sanderson Orders, Calderbank Offer
Civil Procedure Costs Building and Construction Commercial Litigation Costs Categorisation (rule 48) Time Bands Expert Witness Fees and Disbursements Apportionment Between Multiple Defendants +2 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 4 Authorities cited 11 Party arguments 2 Amounts and remedies 9
Sign in to unlock

Parties

BODY CORPORATE NO. 189855

First Plaintiff

PAULINE LOUISE HOUGH & ORS

Second Plaintiff

NORTH SHORE CITY COUNCIL

First Defendant

STEPHEN FRANCIS SMYTHE

Second Defendant

PATRICK JAMES O'HAGAN

Third Defendant

CENTRE OF ATTRACTION LIMITED (FORMERLY O'HAGAN INDUSTRIES LIMITED) (IN LIQUIDATION)

Fourth Defendant

JOSEPH WALDEN

Fifth Defendant

STACK NZ LIMITED

Sixth Defendant

ANDREW PLASTERING CO (1994) LIMITED

Seventh Defendant

ALAN MAXWELL GRANT

First Third Party (discontinued)

BARRY GLENN BRACEWELL

Second Third Party (discontinued)

Procedural Posture

Civil (leaky Building / Contractual and Tort Claims) / Costs Judgment (post‑trial)

Legal Issues

  1. 1 Whether the costs categorisation fixed at the case management conference (category 2) should be reclassified to category 3 after judgment
  2. 2 Appropriate time bands for interlocutory and trial steps
  3. 3 Recoverability and quantum of expert witness fees and other disbursements under r 48H

Ratio Decidendi

The plaintiffs failed to establish the special reasons required to displace an advance costs categorisation under r 48(2); costs remain category 2. Time bands were allocated so initial interlocutory attendances attract band C with subsequent repetitive attendances B, and document inspections for each defendant justify C. Expert fees and other disbursements are recoverable to the extent they meet r48H criteria, but the court reduced fees where experts had dual roles (50% for Mr O'Sullivan). Costs liability among multiple defendants is apportioned proportionally to reflect differing degrees of success and responsibility (third and fourth defendants liable for 10% of plaintiffs' costs and...

Court Disposition

Application to reclassify costs to category 3 refused; costs fixed and apportioned as detailed below; time bands and disbursement recoverability determined; partial reductions of specific expert fees ordered; Bullock order made in favour of fifth and sixth defendants allowing partial recovery from first defendant.

Orders

  • Reclassification to category 3 refused; costs remain category 2.
  • Plaintiffs are awarded costs of $236,985.00 and disbursements of $156,758.15; the First, Second and Seventh Defendants are jointly and severally liable for those amounts.