COUTTS AND ANDERSON AS TRUSTEES OF THE BARLEY STATION TRUST V DAVENPORTS HARBOUR LAWYERS HC AK CIV-2011-404-4430

COUTTS AND ANDERSON AS TRUSTEES OF THE BARLEY STATION TRUST V DAVENPORTS HARBOUR LAWYERS HC AK CIV-2011-404-4430 [1 May 2012]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2011-404-4430[2012] NZHC 862BETWEEN GRANT COUTTS AND STEPHEN LAUDANDERSON AS TRUSTEES OF THEBARLEY STATION TRUSTPlaintiffAND DAVENPORTS HARBOUR LAWYERSFirst DefendantAND PETER Q SNEDDEN INSURANCES LTDSecond DefendantAND DAVID STRINGER ARCHITECTS LTDThird DefendantAND RILEAN CONSTRUCTION (SOUTHISLAND) LIMITEDFirst Third PartyAND QUEENSTOWN WATERPROOFINGSYSTEMS LIMITEDSecond Third PartyHearing: 2 February 2012Counsel: N Till QC and F Monteiro for PlaintiffsR Scott and J Tomlinson for First DefendantW Holden for Third DefendantJudgment: 1 May 2012RESERVED JUDGMENT OF ASSOCIATE JUDGE SARGISSON(Set aside third party notices)This judgment was delivered by me on 1 May 2012 at 4 pm pursuant toRule 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate ..........................Solicitors:Wilson Harle, PO Box 4539, Shortland Street, AucklandMcElroys, P O Box 835, AucklandBeachcroft New Zealand, PO Box 106869, AucklandIntroduction[1] The plaintiffs, the trustees of the Barley Station Trust, apply to have third party notices set aside. The first defendant, the law firm of Davenports Harbour Lawyers, issued the third party notices against Rilean Construction (South Island)Limited and Queenstown Waterproofing Systems Limited (jointly referred to as "the builders") under High Court Rule 4.4.1[2] The application is opposed by Davenports.[3] The question for determination is essentially a legal issue. It is whether or not there is any arguable basis on which Davenports may have available to it a claim for contribution from the builders, under s 17(1) Law Reform Act 1936 or in equity. It is not in dispute that unless such a claim is arguable, the third party notice should be setaside and Davenports' statement of claim against the builders be dismissed.Factual background and the plaintiffs' claim[4] The trust owned a property, with a homestead, in Queenstown. Davenports was a professional trustee for the trust and was its solicitor. The homestead suffered extensive fire damage in the course of renovation by the builders. All that remained of the homestead after the fire was the chimney. NZI was the insurer of the homestead whose policy contained an exclusion clause for construction works. Relying on the exclusion, NZI declined an insurance claim that the trustees made in respect of the fire damage. The declinature was challenged but upheld by this court.[5] The trustees therefore commenced this proceeding. The statement of claim relies on causes of action in contract and tort and alleges that Davenports (and the other defendants) breached their professional obligations by neglecting to ensure that1 Relevantly, rule 4.4 states:(1) A defendant may issue a third party notice if the defendant claims any or all of the following:(a) that the defendant is entitled to a contribution or an indemnity from a person who is not a party to the proceeding (a third party):there was adequate insurance in place to cover the risks of construction. As a result, the trust suffered loss in that:(a) The trust property was not insured against the fire, and the trust was not insured for the ensuing losses. Such losses are, it alleges, the costs of rebuilding the homestead after the fire amounting to some $1.73 million including GST.(b) The trust incurred wasted expenditure in establishing that no suitable insurance was in place of $154,311 in legal fees, plus a costs award of $8,000.Parties' positions on the application[6] Davenports claims that it was the builders who were responsible for the fire and that it is entitled to a contribution from them on the following bases:(a) under s17 as the builders' negligence also caused the loss that the trust claims for against Davenports; and(b) in equity as the builders have a liability to the trust that is co-ordinate with the liability of Davenports, in that any amount paid by the builders to the trust as damages operates to reduce the damages payable by Davenports.[7] Davenports' position is that its claimed entitlement to contribution, based on either s 17(1) or equitable principles of contribution, is at least arguable. It relies essentially on the argument that a party is liable to pay contribution where a payment by one party operates directly to reduce the liability of the other. This is known as the mutual discharge test.[8] The trustees insist that no form of contribution is available, either under s17 or on the application of equitable principles, and that they are entitled to the order they seek in their application. Their application is made under r 4.16 of the High Court Rules. The relevant portion of r 4.16 states:(2) A party to a proceeding served with a third party notice issued and served without leave of the court may apply to the court to have the notice set aside.(3) The court may:(a) Set the third party notice aside and dismiss the defendant's statement ofclaim against the third party:-(i) on the merits;Issues[9] The onus is on the trustees to show that Davenports' claim for contribution is not arguable and could not possibly succeed. That turns on two issues (to be answered assuming pleadings of fact are true):(a) Section 17(1) – whether, by reason of their respective torts(Davenports' failure to adequately insure the property against the fireand the builders' alleged negligence in causing or failing to extinguish the fire) Davenports and the builders are liable in respect of the same damage.(b) Equity – whether, by reason of Davenports' breach of contract and the builders' alleged tort, they share a common or co-ordinate liability forthe same damage in respect of the trustees' loss.[10] For reasons I will turn to presently, I am satisfied that the third party notice must be set aside:(a) The damage the trustees have suffered as a result of Davenports' tortis not the same damage as that which they have suffered as a result ofthe builders' tort.(b) Davenports and the builders do not share a common or co-ordinateliability for the same damage arising from Davenports' contractual wrongs and the builders' alleged tort.[11] I reach this conclusion with a degree of sympathy for Davenports. I amconscious of Thomas J's reasoning in Dairy Containers Ltd v NZI Bank Ltd thatanomalous circumstances, such as those in the present case, can arise where "theplaintiff can dictate the form of the liability and, consequently, the distribution ofloss."2 Nonetheless, I am bound by the law as it stands, and on that there can be no doubt following the recent Supreme Court decision Marlborough District Council v Altimarloch.3 As McGrath J observed in his judgement, change in this area can only be reached by legislation.4[12] I begin with s 17.Section 17[13] Section 17 concerns proceedings against, and contribution between, joint and several tortfeasors. Materially, s 17(1) states (emphasis added):(1) Where damage is suffered by any person as a result of a tort...(c) Any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is, or would if sued in time have been, liable in respect of the same damage, whether as joint tortfeasor or otherwise...[14] It is not in dispute that contribution is only available under this provision as between tortfeasors, where they are liable in respect of the same damage.[15] At the hearing it was common ground that there was no determinative statement by the courts in New Zealand as to the meaning of the words I have emphasised. Counsel for each side referred me to decisions of the English courts. InEngland, the phrase "same damage", as it appears in the equivalent legislation to the Law Reform Act, has been the subject of judicial interpretation by the Court ofAppeal and the House of Lords. The Court of Appeal interpreted "same damage"2 Dairy Containers Ltd v NZI Bank Ltd [1995] 2 NZLR 30, 1223 Marlborough District Council v Altimarloch Joint Venture Ltd [2012] NZSC 11.4 At [224] per McGrath J.broadly in Hurstwood 5 by adopting the test of mutual discharge, whereas the House of Lords interpreted "same damage" narrowly in Royal Brompton6.[16] In Royal Brompton, the Hurstwood mutual discharge approach was considered and dismissed. Lord Steyn made the following observation:7[33] ... In my view the extensive interpretation of section 1(1) adopted by the Court of Appeal led to a conclusion not warranted by the language of the statute. If my conclusions in respect of the claims under consideration in the present case are correct it follows that theHurstwood case was wrongly decided.[17] Lord Steyn rejected an expansive interpretation of "same damage" andinstead held that the ordinary meaning of the words was appropriate:8[27] The critical words are "liable in respect of the same damage."Section 1(1) refers to "damage" and not to "damages". It wascommon ground that the closest synonym of damage is harm. Thefocus is, however, on the composite expression "the same damage".As my noble and learned friend Lord Bingham of Cornhill has convincingly shown by an historical examination the notion of a common liability, and of sharing that common liability, lies at the root of the principle of contribution. The legislative technique of limiting the contribution principle under the 1978 Act to the same damage was a considered policy decision. The context does not therefore justify an expansive interpretation of the words "the same damage" so as to mean substantially or materially similar damage.Such solutions could have been adopted but considerations of unfairness to parties who did not in truth cause or contribute to the same damage would have militated against them. Moreover, the adoption of such solutions would have led to uncertainty in the application of the law...[18] As at the date of hearing, the phrase "same damage" had not been the subject of similar judicial interpretation in New Zealand.Issue: Does the narrow Royal Brompton approach for determining "same damage"apply in New Zealand?5 Hurstwood Developments Ltd v Motor & General & Andersley & Co Insurance Services Ltd [2002]Lloyd's Rep IR 185.6 Royal Brompton NHS Trust v Hammond [2002] UKHL 14.7 Royal Brompton NHS Trust v Hammond, above n 5 at, [33] per Lord Steyn.8 At [27] per Lord Steyn.[19] When counsel appeared before me there was no dispute that to succeed the trustees needed to show that the narrower approach applies in New Zealand. Accordingly, the first issue for determination was whether the narrower approach should be adopted and if so whether liability arises because Davenports and thebuilders did cause the "same damage" according to that approach.[20] Following the hearing, the task of determination has been simplified by the release of the Supreme Court's Altimarloch decision on which I have now had the benefit of further submissions from both sides.9[21] The Altimarloch decision has effectively settled the issue as to whether the narrow Royal Brompton approach is applicable in New Zealand. I note that in that case, the Supreme Court discussed equitable contribution as opposed to s 17. However, by drawing from the Royal Brompton decision, which addressed the English equivalent of s 17, it must be inferred that the Supreme Court approves of the narrow approach in s 17 cases.[22] In Altimarloch, both Elias CJ and Tipping J applied aspects of the Royal Brompton decision. Elias CJ approved of the observation in Royal Brompton that thewords "the same damage" cannot be interpreted expansively to mean "substantially or materially similar damage."10[23] Tipping J quoted from the speeches of Lord Bingham, Lord Steyn and Lord Hope. Blanchard J agreed with Tipping J's approach to contribution.11 I outline some of Tipping J's judgement to demonstrate the extent to which the SupremeCourt has relied on Royal Brompton. The extracts that I quote emphasise that "same damage" refers to a common liability, as opposed to an independent liability (emphasis added): 129 Marlborough District Council v Altimarloch Joint Venture Ltd, above n 3.10 Marlborough District Council v Altimarloch Joint Venture Ltd, above n 3. See footnote 92 per EliasCJ which refers to Lord Steyn's speech in Royal Brompton Hospital NHS Trust v Hammond [2002] UKHL 14, [2002] 1 WLR 1397 at [27].11 At [75].12 Marlborough District Council v Altimarloch Joint Venture Ltd, above n 3, at [134] – [139] per Tipping J.[134] The leading case in England, albeit under the Civil Liability (Contribution) Act 1978, is the decision of the House of Lords inRoyal Brompton Hospital NHS Trust v Hammond. The speeches of Lord Bingham, Lord Steyn and Lord Hope in that case each contain valuable discussions of the history of the law of contribution and its statutory development in the United Kingdom, ...[135] Lord Bingham made several important points. He said that the common link between all the situations giving rise to a liability tocontribute was the obvious justice of requiring that "a common liability should be shared between those liable". He added that the English legislation, by using the words "in respect of the same damage", emphasised the need for the one loss to be apportioned among those liable. His Lordship emphasised the difference between a common liability and an independent liability...[136] Lord Steyn said that "the notion of a common liability, and ofsharing that common liability, lies at the root of the principle ofcontribution". He added that the legislative context did not justify "an expansive interpretation of the words "the same damage" so as tomean substantially or materially similar damage... No glosses, extensive or restrictive, are warranted."[137] Lord Hope said:[46] I do not detect either in the Law Commission's Report or in thewording of the Act itself [the 1978 Act] an intention to depart from the assumption which has always been made in contribution cases that this relief is available only where two or more persons have contributed, albeit in different ways, to the same harm or damage –that is, where a single harm has resulted from what they have done.[138] A little later his Lordship added:[47] The effect of those words ["same damage"] is that theentitlement to contribution applies only where the person from whom the contribution is sought is liable for the same harm or damage, whatever the legal basis of his liability. But the mere fact that two or more wrongs lead to a common result does not of itself mean that the wrongdoers are liable in respect of the same damage. The facts must be examined more closely to determine whether or not the damage is the same.[139] It follows from the foregoing discussion that unless this Court were substantially to extend the principles of equitable contribution, the vendors could not obtain contribution from the Council even if the Council were liable to the purchaser. ...[24] I note that the Supreme Court did not agree unanimously in the Altimarlochdecision. However, even McGrath J referred to Royal Brompton with approval in his dissenting judgement.13 In addition, Tipping J noted that his views and those expressed by McGrath J did not differ on the legal approach to be adopted to contribution issues, but rather on the application of that approach to the facts.14 The result is that I am satisfied that the Altimarloch decision relied on the narrow Royal Brompton approach to such extent that I can only conclude that the Royal Bromptonapproach is to be applied for the purpose of interpreting "same damage" in the NewZealand statute.[25] I now turn to the second issue.Issue: Did Davenports and the builders cause the "same damage" according to thenarrow Royal Brompton approach?[26] In order to address this issue, it is necessary to establish exactly what theRoyal Brompton approach for determining liability for the "same damage" consistsof. Lord Hope, in his speech, noted at [47] that whether or not a person is liable for the same harm or damage requires that the facts be examined to determine whether or not the damage is the same whatever the legal basis of liability. At [46] he observed that two persons may have contributed in different ways to the same harm or damage.[27] Royal Brompton concerned a claim by a hospital against an architect. A contractor was employed by the hospital to construct new premises. The contract provided that if the construction went beyond the completion date, the contractor had to pay liquidated damages to the hospital. The architect granted time extensions to the contractor which relieved the contractor of its obligation to pay liquidated damages for the delay. The hospital brought a claim against the architect for negligence in granting the time extensions. The architect sought to join the13 At [199].14 At [144].contractor in order to claim contribution from it. The contractor applied to strike out the claim.[28] Lord Steyn explained that a "same damage" assessment will turn on a "correct evaluation and comparison of claims" (emphasis added):15That is the context of section 1(1) and the phrase "the same damage". It must be interpreted and applied on a correct evaluation and comparison of claims alleged to qualify for contribution under section 1(1). No glosses, extensive or restrictive, are warranted. Thenatural and ordinary meaning of "the same damage" is controlling.[29] In his evaluation and comparison of the claims of the hospital and the architect, Lord Steyn observed:16[22] The characterisation of the [hospital's] claim against the contractor is straightforward. It is for the late delivery of the building. This is not a claim which the [hospital] has made against the architect. Moreover, notionally it is not damage for which the architect could be liable merely by reason of a negligent grant of an extension of time. It is conceivable that an architect could negligently cause or contribute to the delay in completion of works, e.g. by condoning inadequate progress of the work or by failing to chivvy the contractor. In such a case the contractor and the architect could be liable for the same damage. There are, however, no such allegations in the present case.[30] The House of Lords held the requirement that the two claims were for the"same damage" was not satisfied. Essentially, it was held that the claim against the contractor was for delay, while the claim against the architect was for the impairmentof the hospital's ability to obtain financial recompense from the contractor.1715 Royal Brompton NHS Trust v Hammond, above n 6, at [27] per Lord Steyn.16 At [22].17 The architect had instructed the contractor to lay a substance named Hydrotite in the construction process. The Hydrotite took a long period to dry, which led the architect to grant time extensions. The hospital claimed that the architect had been negligent in the following way:[14] ... The architect granted extensions of time totalling 12 weeks (including 2 for Christmas) by reason of delay caused by the application of the Hydrotite. The [hospital] claims that the architect was negligent in failing to give adequate advice as to the options available to the [hospital]... or as tothe possible consequences of issuing an architect's instruction to layHydrotite in terms of claims for an extension of time and loss and expense.[31] I emphasise that the Royal Brompton approach requires a correct evaluation and comparison of claims alleged to qualify for contribution. It is therefore necessary to evaluate and compare the respective claims of the trustees and Davenports.Evaluation of claims[32] In their statement of claim, the trustees allege (in contract and in tort) that thedamage for which Davenports is liable is the trustees' lack of right to indemnity. That damage was caused by Davenports' failure to ensure that adequate insurancewas in place over the property. They claim that the quantum of this damage is the insured reinstatement cost for the property lost as a result of the lack of insurance (reinstatement of new building) minus the premium and excess cost that would have been expended, plus the cost of proceeding against the insurer.[33] Davenports claims that the builders are liable in tort for the cost of reinstatingthe homestead. In Davenports' statement of claim against the builders, they allege that the builders breached duties of care in relation to the causation and extinguishment of the fire and that the builders also caused the loss claimed by the trustees. As a result, if Davenports is liable to the trustees, then it is entitled to contribution from the builders as concurrent tortfeasors.Comparison of claims[34] While the trustees claim that Davenports is liable for the failure to obtain adequate insurance cover, Davenports claims that the builders are liable for negligence that resulted in the destruction of the homestead by fire. Importantly, the trustees do not claim against Davenports for negligence that resulted in the destruction of the homestead. Instead, the trustees claim against Davenports for theThe most succinct characterisation of the hospital's claim against the architect was given by Stuart- Smith LJ in the Court of Appeal. As quoted by the Lord Steyn, Stuart-Smith LJ provided the following description:[15] ... the damage caused by the architect occurred at the time of the certification of extensions and was the impairment of the ability of the [hospital] to obtain financial recompense in full from the contractor...impairment of their ability to obtain insurance compensation for the destruction of the homestead.[35] Upon an acute evaluation and comparison of the claims alleged in this case, it becomes clear that Davenports and the builders are not liable in respect of the same damage. The damage caused by the negligence of the builders is the destruction of the homestead by fire. The damage caused by the negligence of Davenports is the inability to claim insurance. Davenports and the builders do not share responsibility for the failure to ensure adequate insurance. Similarly, Davenports and the builders do not share responsibility for the negligence that resulted in the fire.[36] Davenports submit that the damage which the trustees have suffered and claimed for is the loss of the homestead for which there was no cover. Essentially, Davenports have attempted to combine the damage caused by their own negligencewith the damage caused by the builders' negligence in order to create one compositeloss or damage. While that is a credible line of reasoning, it is not an accurate reflection of the law.[37] Although the trustees did, in fact, suffer the consequences of the alleged negligence of Davenports as well as the consequences of the alleged negligence of the builders, the trustees do not claim for the combined consequences. It is the prerogative of the trustees to characterise its alleged damage and to characterise its claims. According to its claims, the trustees have suffered the damage of an inability to claim financial recompense through insurance.[38] In summary, I am satisfied that this claim for third party contribution does not relate to the "same damage" and Davenports cannot claim contribution from thebuilders under s 17.[39] I now turn to whether Davenports has an arguable claim for contribution against the builders in equity. For reasons that can be stated briefly I am satisfied that equitable contribution is also not available in this case.Equitable contribution[40] The trustees' statement of claim against Davenports includes causes of actionboth for negligence and for breach of contract. This led Davenports to claim for contribution under s 17 as well as in equity.[41] Davenports initially submitted that if contribution under s 17 is not availablebecause a technical "same damage" test is not met, then Davenports should beentitled to contribution in equity. The argument was essentially that New Zealand had adopted an approach to equitable contribution that would provide a wider scope than that of s 17. Davenports had argued for a broad approach to equitable contribution based on the mutual discharge test as applied in the dissenting judgement of Kirby J in the Australian High Court case Burke.18[42] However, the Altimarloch judgement specifically rejected the approach of Kirby J in favour of the majority decision in Burke.19 That majority decision determined that liabilities of the parties between whom equitable contribution maybe ordered must be "of the same nature and to the same extent". 20[43] In the wake of the Altimarloch decision, counsel for Davenports concede in their further submissions that the tests for contribution both under s 17 and in equity are essentially the same, both requiring liability of the same nature and extent.[44] The Supreme Court's approach in Altimarloch clarifies that the basis for equitable contribution is that the parties are under a coordinate liability for the same loss or damage. I quote from Tipping J's judgement to illustrate (emphasis added): 21[128] ...The current legal position, put simply, is that one wrongdoer can recover contribution from another wrongdoer, in respect of the same loss, only by virtue of some statutory provision or in accordance18 Burke v LFOT Pty Ltd (2002) 209 CLR 282 at [103]-[104] per Kirby J.19 Marlborough District Council v Altimarloch Joint Venture Ltd, above n 3, at [224] per McGrath J.20 Burke v LFOT Pty Ltd above n 18, at [16], [38], [50] and [52].21 Marlborough District Council v Altimarloch Joint Venture Ltd, above n 3, at [128] – [129] per Tipping J.with the principles of equitable contribution which now subsume the old common law position...[129] Equity will order contribution when two or more parties are under what is conventionally called a coordinate liability (that is a liability of the same nature and extent) to make good one loss and one of them pays more than his or her proportionate share of that loss. In such circumstances the overpaying party can recover equalising contribution from the other party or parties. It is essential to the application of the equitable contribution that all parties involved in the contribution issue are under a coordinate liability for the same loss.[45] This quote illustrates that contribution, whether under s 17 or equity, is basedon the same notion that two parties are liable for the "same damage" or "same loss".It cannot be said, therefore, that equity widens the scope of the test upon which an order for contribution will be deemed appropriate. In other words, a claim for contribution which fails under s 17 cannot succeed in equity.[46] In conducting his analysis, Tipping J considered whether there was a single claim for which both parties were liable, and reached the following conclusion: 22[135] ... In the case before us the liabilities are clearly independent because the causes of action are different and the loss is not the same. There is no single claim for which both parties are liable.[47] For the reasons outlined above, I am of the opinion that the alleged liability of Davenports is not of the same nature as the alleged liability of the builders. Davenports' liability is in contract and tort for failing to ensure that the trustees'property was adequately insured. The builders' liability is in tort for action or inaction that caused the destruction by fire. Although each party may be liable, the nature of that liability is distinct.[48] Having concluded that the liability of Davenports is not of the same nature as the liability of the builders, it is not necessary to examine at length whether the extent of the liability of each party is the same. It is sufficient to say that that the extent of the liability of the parties is plainly distinct.22 Marlborough District Council v Altimarloch Joint Venture Ltd, above n 3, at [135] per Tipping J.[49] Ultimately, there is no single claim for which both Davenports and the builders are liable. The trustees cannot claim from Davenports for the harm of causing the fire. Similarly, and pertinently in this case, the trustees cannot claim from the builders for the failure to ensure adequate insurance. The liabilities are therefore independent and the resultant damage or loss is not the "same".Separate issueIssue: Is the Royal Brompton approach is compatible with the leaky buildings case law in New Zealand?[50] A separate issue relates to a point raised by counsel for Davenports which suggested that the narrow Royal Brompton approach is incompatible with the New Zealand case law concerning leaky buildings. Davenports suggested that as a result of this incompatibility, the Royal Brompton approach should not be applied in this application.[51] In essence, counsel for Davenports submitted that if the mutual discharge test for liability is not adopted in this application, then this decision would drive a horse and cart through the case law in relation to leaky buildings. The argument was not developed in a significant way and it is not necessary to discuss the issue at length here. It is sufficient to say that within the Royal Brompton approach, there is scope to allow for contribution in the context of the leaky buildings case law wherecontractors and local authorities have caused the "same damage".[52] In Royal Brompton, Lord Steyn explained:23... It is conceivable that an architect could negligently cause or contribute to the delay in completion of works, e.g. by condoning inadequate progress of the work or by failing to chivvy the contractor. In such a case the contractor and the architect could be liable for the same damage. There are, however, no such allegations in the present case.[53] The New Zealand leaky buildings case law fits comfortably within the situation conceived by Lord Steyn involving the failure to chivvy a contractor. Inleaky buildings case law, a local authority can be liable for causing the "same23 Royal Brompton NHS Trust v Hammond, above n 6 at, [22] per Lord Steyn.damage" as a negligent builder where the local authority has failed to chivvy the builder. In that situation, an order for contribution against the local authority would remain appropriate within the Royal Brompton approach.Conclusion[54] For the reasons outlined above I am not convinced that Davenports has an arguable claim for contribution from the builders either under s 17(1) Law Reform Act 1936 or in equity. Accordingly, I accept that the trustees' application to set asidethird party notices under r 4.16 of the High Court Rules should be granted.[55] I record that my findings proceed on the basis that pleaded facts are assumed to be true. Whether or not the facts alleged in the statement of claim are indeed true remains, of course, a matter for future determination.Result[56] The plaintiffs' application is granted. Davenports' third party claims are set aside and its statement of claim against the third parties is dismissed.[57] Costs should follow the event as provided for in the statutory costs regime. Accordingly, Davenports is to pay costs on a 2B basis plus disbursements as fixed by the Registrar.Next Event[58] The Registrar is requested to allocate a telephone case management conference. Matters for discussion will include the matters set out at paragraph [8] of my minute of 29 September 2011. Counsel for the plaintiffs and the defendants are to file and serve memoranda at least 2 working days prior to the conference.___________________________Associate Judge Sargisson