NORTH SHORE CITY COUNCIL V BODY CORPORATE 189855 AND ORS CA CA507/2008

NORTH SHORE CITY COUNCIL V BODY CORPORATE 189855 AND ORS CA CA507/2008 4 June 2010IN THE COURT OF APPEAL OF NEW ZEALAND CA507/2008 [2010] NZCA 235BETWEEN NORTH SHORE CITY COUNCIL Appellant AND BODY CORPORATE 189855 First Respondent AND PAULINE LOUISE HOUGH & ORS Second Respondents AND PATRICK JAMES O'HAGAN Third Respondent AND STEPHEN FRANCIS SMYTHE Fourth Respondent AND CENTRE OF ATTRACTION LIMITED (IN LIQUIDATION) Fifth Respondent AND JOSEPH WALDEN & STACK NZ LIMITED Sixth Respondents AND STACK NEW ZEALAND LIMITED Seventh Respondent AND ANDREW PLASTERING CO (1994) LIMITED Eighth Respondent Hearing: 7-11 September 2009 Court: William Young P, Arnold and Baragwanath JJ Counsel: D J Goddard QC, S A Thodey and S B Mitchell for Appellant G B Lewis and M C Josephson for First Respondent M A Gilbert SC for Fourth Respondent H M Macfarlane for Sixth Respondent G Andrew for Eighth RespondentJudgment: 4 June 2010 at 2.30pmSUPPLEMENTARY JUDGMENT OF THE COURTA The general damages awards proposed by Baragwanath J in Byron Avenue [2010] NZCA 65 at [129] are the orders of the Court. B The costs order made by the High Court in respect of costs in that Court stands.____________________________________________________________________REASONS OF THE COURT(Given by Baragwanath J) [1] In Byron Avenue1 we reserved costs and leave to all of the parties to apply to the Court for correction of any material errors and omissions in the judgment. 2Clarification of awards for damages for non-economic loss[2] Counsel have drawn our attention to a possible difference between the damages orders for non-economic loss proposed by Baragwanath J at [129] and those proposed by William Young P at [153] (with which Arnold J agreed at [183](a)). [3] For the avoidance of doubt, the orders proposed by Baragwanath J are the orders of the Court.1 Byron Avenue [2010] NZCA 65.2 At [130].CostsVariations to costs orders made in High Court.[4] In the High Court, Venning J reserved costs. 3 Counsel were unable to agree and filed memoranda. Venning J made the following order: 4[35] The plaintiffs [the first and second respondents] are to have costs in the sum of $236,985.00 calculated in accordance with [an] attached schedule together with disbursements of $156,758.15. The first, second and seventh defendants are jointly and severally liable to the plaintiff for costs and disbursements in that sum. [36] The third and fourth defendants [the third and fifth respondents respectively] are jointly liable with the first, second and seventh defendants [the appellant, and fourth and eighth respondents in respectively] for 10% of those costs and disbursements namely $23,698.50 and $15,676.00 respectively. [37] The fifth and sixth defendants [the sixth and seventh respondents in respectively] are to have costs against the plaintiff in the sum of $127,200.00 plus disbursements of $8,743.61. There will be a Bullock order that the plaintiffs are entitled to recover part of those costs namely $39,360.00 and disbursements, $1,254.48 (in total $40,614.48) against the first defendant.[5] The second respondents' cross-appeal to this Court was successful in the following respects: (a) the finding of contributory negligence against the trustees of the Clark Family Trust was reversed; (b) damages for non-economic loss were awarded to Mrs Clark; (c) the quantum of such damages increased; (d) the Council conceded consequential losses of $3,898 to Ms Kim. [6] The second respondents received costs in the High Court. There is no reason to revisit that order.3 Body Corporate 189855 v North Shore City Council HC Auckland CIV 2005-404-005561, 25 July 2008 at [426].4 Body Corporate 189855 v North Shore City Council HC Auckland CIV 2005-404-005561, 2 October 2008.Costs in this Court[7] Mr Goddard QC for the appellant Council advised that costs as between the Council and the first and second respondents have been settled.Solicitors: Heaney & Co, Auckland for Appellant Grimshaw & Co, Auckland for Respondents