FITZGERALD v IAG NEW ZEALAND LIMITED [2018] NZHC 640

FITZGERALD v IAG NEW ZEALAND LIMITED [2018] NZHC 640 [11 April 2018]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCIV-2016-404-000779[2018] NZHC 640BETWEEN STEPHEN PATRICK FITZGERALD,NICOLA MARY FITZGERALD ANDHAMISH ALEXANDER SCOTTPlaintiffsAND IAG NEW ZEALAND LIMITEDDefendantCounsel: S P Rennie for PlaintiffsC Jamieson for DefendantJudgment: 11 April 2018JUDGMENT OF GENDALL J(As to Costs – Determined on the papers)[1] On 2 November 2017 I gave an oral judgment in this proceeding which grantedto the defendant leave to bring further evidence in this matter. A trial at that point wasscheduled to commence on 6 November 2017 and necessarily that trial date had to bevacated.[2] In a minute which followed dated 6 November 2017, I noted that a further issuehad arisen over a possible claim which might be brought for wasted costs as a resultof the trial date being vacated. In that minute I made directions for the filing ofmemoranda by counsel for the parties with respect to any claim for wasted costs.[3] Counsel for the plaintiffs has now filed a memorandum dated 15 November2017 which seeks amounts set out therein for wasted costs. The amounts concernedare $7,693.50 on the basis the plaintiffs say the defendant was granted an indulgenceto have the hearing adjourned. In addition, the plaintiffs seek additional wasted costsassociated with what is described as the aborted trial totalling $13,380. Finally,counsel for the plaintiffs suggests that their structural engineering expert, Mr McGill,confirms likely wasted costs he has incurred will be in the region of $2000 to $3000.[4] This 15 November 2017 memorandum from counsel for the plaintiffs has beenmet by a lengthy response from counsel for the defendant dated 13 December 2017.[5] In essence, it is the defendant's position that no order for wasted costs shouldbe made here as there has effectively been no default on the part of the defendant.Costs should simply lie where they fall according to the defendant but, in any event,if the Court decides otherwise, any order for wasted costs should be limited to thosecosts which are truly "thrown away" as a direct result of the trial being adjourned.This, it is said, should represent a nominal amount only.[6] Rule 14.8 High Court Rules clearly contemplates that costs are addressedfollowing the determination of an interlocutory application. And, as McGechan onProcedure at HR Pt 14.16A(4) notes: "only costs directly thrown away as a result ofthe vacating or discontinuing of the hearing are awarded. When a fixture is vacatedbeforehand these comprise "trial focused" costs – costs thrown away because they willhave to be incurred all over again in preparation for the fresh fixture." Here, theplaintiff says the Court granted the defendant an indulgence following its default inmeeting earlier timetable directions to allow new and supplementary briefs ofevidence to be introduced.[7] Accordingly, the plaintiffs maintain it is appropriate for wasted costs to befixed now in their favour and paid. The plaintiffs also seem to hint that costs on theleave application should also be awarded in their favour and these be paid now as well.[8] In response, counsel for the defendant suggests that what has occurred heredoes not represent a proper circumstance for issues over wasted costs to arise. Muchis made of a timeline of events leading up to November 2017 but I have no wish toanalyse this moment for moment at this interim stage of events and under all the othercircumstances here.[9] Counsel for the defendant submits too that it is not appropriate to describe thedefendant as having been granted an indulgence here. Leave to adduce this additionalevidence, it is said, was granted purely because it was in the interests of justice thatthe Court be assisted by the relevant expert evidence on key issues which were at issue.Filling these gaps in the expert evidence, the defendant says, was essential in this case.[10] In considering all the circumstances relating to the need to adjourn the6 November 2017 trial in this matter, I am of the view that this has been brought aboutby the very late realisation from the defendant that this additional evidence wasrequired. That being so, I find that if the plaintiffs have truly incurred wasted costsfor this adjournment, then these are recoverable against the defendant.[11] On that issue, however, I reject the plaintiffs' claim for costs involved inpreparing their briefs of evidence, the common bundle or indeed preparation for thehearing. These were amounts claimed by counsel for the plaintiffs totalling $13,380.This work is not wasted and was required in any event for the ultimate hearing in thismatter which is still scheduled. Generally, they will not need to be incurred again inpreparation for the fresh fixture.[12] As to the balance of the plaintiffs' wasted costs claim, these are set out at para 8of the 15 November 2017 memorandum from counsel for the plaintiffs. They total$7693.50, representing 3.45 days at the category 2B scale rate of $2230 per day. Aportion of these costs, in my view, however, could not be truly described as wastedcosts in the sense that, again, much of the work involved to which the costs relate willnot need to be repeated when preparation for the final trial in this matter is undertaken.[13] That said, the plaintiffs, as I see it, are entitled to 2B costs for work that is trulywasted as follows:Notice of Opposition 0.6 daysAppearance 0.5 daysSecond counsel – 50% 0.25 daysTotal 1.35 days@ $2230 $3010.05[14] Although it is somewhat unclear from the memorandum filed by counsel forthe plaintiffs, it seems that the plaintiffs are also seeking "the likely wasted costs he[Mr McGill] has incurred" of $2000 to $3000. This appears to be supported by a letterto Mr Fitzgerald dated 14 November 2017 from the plaintiffs' engineering expert,Mr McGill. The letter is brief and provides no explanation or breakdown as to whythese costs would be truly wasted. Nevertheless, I do place on record now theplaintiffs' suggestion that Mr McGill, as an expert witness engaged by them, will beclaiming certain additional costs said to relate to his need to review the file andrefamiliarise himself for the aborted November 2017 trial when this matter does finallyreach trial. That is noted at this point and it is a matter, no doubt, that will be beforethe trial Judge at that time.[15] In the meantime, I confirm that the plaintiffs are entitled to an amount by wayof wasted costs against the defendant with respect to the indulgence provided to thedefendant by adjourning the November 2017 trial date.[16] That amount, as noted at para [13] above is $3010.05.[17] The defendant is therefore to pay to the plaintiffs by way of wasted costs thisamount of $3010.05....................................................Gendall JSolicitors:Rhodes & Co, ChristchurchYoung Hunter Lawyers, Christchurch