DONOVAN DRAINAGE & EARTHMOVING LTD V HALLS EARTHWORKS LTD HC AK CIV-2010-404-000029
Leave to appeal was refused because the contractual interpretation ground had no merit and the expert's success fee, even if improper, would not have changed the outcome; the expert's fee was excluded from recoverable disbursements and no costs were awarded on the leave applications, costs to lie where they fall.
Source-derived case information.
- Citation
- openlaw-24ce1737_529e_4258_8ced_83121c6a48a4.pdf
- Parties
- Appellant: Donovan Drainage & Earthmoving Limited; Respondent: Halls Earthworks Limited
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 11 November 2011
- Procedural Posture
- Civil Appeal Leave to Appeal Application / Leave to Appeal Application Dismissed (11 November 2011)
- Outcome
- Applications for leave to appeal dismissed; no costs awarded to either party; costs on the applications to lie where they fall.
- Legal Topics
- Leave to Appeal, Expert Witness Fees, Success Fee, Liquidation, Contract Interpretation, Costs Orders
Source-derived case record
Summary, issues, holding and outcome
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Parties
Donovan Drainage & Earthmoving Limited
Appellant
Halls Earthworks Limited
Respondent
Procedural Posture
Civil Appeal Leave to Appeal Application / Leave to Appeal Application Dismissed (11 November 2011)
Legal Issues
- 1 Whether the proposed second appeal raised a tenable issue on contract interpretation
- 2 Whether an expert witness negotiating a success fee before giving evidence justified setting aside the judgment or granting leave to appeal
- 3 Whether the liquidation of the respondent meant unsecured creditors would have to meet the expert's fee and thus caused injustice to the appellant
Ratio Decidendi
Leave to appeal was refused because the contractual interpretation ground had no merit and the expert's success fee, even if improper, would not have changed the outcome; the expert's fee was excluded from recoverable disbursements and no costs were awarded on the leave applications, costs to lie where they fall.
Court Disposition
Applications for leave to appeal dismissed; no costs awarded to either party; costs on the applications to lie where they fall.
Orders
- Leave to appeal dismissed
- No party awarded costs on the leave applications
Full Case Text
Judgment text and source record
1 paragraphs
DONOVAN DRAINAGE & EARTHMOVING LTD V HALLS EARTHWORKS LTD HC AK CIV-2010-404- 000029 11 November 2011IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2010-404-000029BETWEEN DONOVAN DRAINAGE &EARTHMOVING LIMITEDAppellantAND HALLS EARTHWORKS LIMITEDRespondentHearing: On the papersJudgment: 11 November 2011 at 3:30 PMJUDGMENT OF COURTNEY JThis judgment was delivered by Justice Courtneyon 11 November 2011 at 3:30 pmpursuant to R 11.5 of the High Court RulesRegistrar / Deputy RegistrarDate.Solicitors: Urlich McNab Kilpatrick, P O Box 633, WhangareiFax: (09) 470-2580David Shanahan, P O Box 1801, Whangarei 0140Fax: (09) 430-0758Counsel: D W Grove, P O Box 130 Shortland Street, Auckland 1140Fax: (09) 362-0102R J Bowden, P O Box 1862, Whangarei 0140Fax: (09) 438-2746[1] In my judgment 2 June 2011 I dismissed applications by both parties for leave to appeal my substantive decision 10 November 2010. The respondent, Halls Earthworks Ltd, seeks costs on that application. Donovan Drainage submits that no costs should be awarded to either party.[2] Donovan proposed two issues as justifying a second appeal. The first, which related to the correct approach to the interpretation of contractual documents, had nomerit at all. The second concerned Halls' expert witness who had negotiated asuccess fee prior to giving evidence. On appeal I rejected Donovan's submissionthat the judgment should have been set aside on this basis alone. I did so because the outcome would have been the same even without the evidence but I did exclude theexpert's fee from the disbursements Halls was entitled to claim.[3] Although it was not raised during the appeal hearing, Donovan sought leave to appeal on the basis that because Halls was in liquidation the unsecured creditors (of which Donovan is one) would have to meet whatever fee is paid to the expert by the liquidators. As a result, Donovan would, through this circuitous route, find itselfmeeting the expert's fee.[4] This point was not argued on the appeal. However, because the outcome of the case would have been the same even without the expert's evidence I did notconsider that a second appeal on that point alone was justified. Nevertheless, this aspect was disturbing and did not reflect well on Halls. For that reason I decline to make any award. Costs on the applications are to be where they fall.__________________________P Courtney J