EVEREST AND BORNER V ROBIN SCHWASS CONSTRUCTION LIMITED AND ORS HC WN CIV-2005-485-849

EVEREST AND BORNER V ROBIN SCHWASS CONSTRUCTION LIMITED AND ORS HC WN CIV-2005-485-849

The court found the second defendant's summary judgment application was opportunistic and lacked merit, was pursued despite clear Calderbank warnings and distinguishing evidence, and therefore immediate costs should be awarded to the plaintiffs. Increased costs of $15,000 were appropriate to reflect unnecessary litigation and approximate solicitor and client costs, with disbursements to be agreed or determined by the Court if disputed.

Citation
openlaw-2ce02685_6df3_4b1c_9abd_fe1b415b5714.pdf
Parties
Plaintiff: Jon Everest and Heidi Borner; First Defendant: Robin Schwass Construction Limited; Second Defendant: Christopher Robin Schwass; Third Defendant: QBE Insurance (International) Limited; Fourth Defendant: Vero Liability Insurance Limited; Fifth Defendant: Masterbuild Services Limited; Sixth Defendant: AHI Roofing Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
30 November 2005
Procedural Posture
Civil Summary Judgment Application / Costs Determination Following Dismissal of Defendant's Summary Judgment Application
Outcome
Costs awarded to plaintiffs against second defendant
Legal Topics
Summary Judgment, Costs, Calderbank Offers (without Prejudice Save as to Costs), Opportunistic Litigation, Reservation Vs. Immediate Fixing of Costs
Civil Procedure Tort (duty of Care) Construction Law Insurance Law Summary Judgment Costs Calderbank Offers (without Prejudice Save as to Costs) Opportunistic Litigation +1 more

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Parties

Jon Everest and Heidi Borner

Plaintiff

Robin Schwass Construction Limited

First Defendant

Christopher Robin Schwass

Second Defendant

QBE Insurance (International) Limited

Third Defendant

Vero Liability Insurance Limited

Fourth Defendant

Masterbuild Services Limited

Fifth Defendant

AHI Roofing Limited

Sixth Defendant

Procedural Posture

Civil Summary Judgment Application / Costs Determination Following Dismissal of Defendant's Summary Judgment Application

Legal Issues

  1. 1 Whether costs should be fixed immediately or reserved following a defendant's unsuccessful summary judgment application
  2. 2 Whether increased/indemnity (solicitor and client) costs are appropriate against a defendant who brought an opportunistic or unmeritorious summary judgment application
  3. 3 What effect Calderbank offers and rule 48G/48GA have on costs orders

Ratio Decidendi

The court found the second defendant's summary judgment application was opportunistic and lacked merit, was pursued despite clear Calderbank warnings and distinguishing evidence, and therefore immediate costs should be awarded to the plaintiffs. Increased costs of $15,000 were appropriate to reflect unnecessary litigation and approximate solicitor and client costs, with disbursements to be agreed or determined by the Court if disputed.

Court Disposition

Costs awarded to plaintiffs against second defendant

Orders

  • Costs of $15,000 awarded to the plaintiffs against the second defendant
  • Disbursements to be agreed between the parties; leave reserved for either party to approach the Court to determine disbursements if disagreement arises