BODY CORPORATE 338356 v ENDEAN [2013] NZHC 2768

BODY CORPORATE 338356 v ENDEAN [2013] NZHC 2768

The respondents' decision to persist with claims against Rudnev despite the information in the 26 January 2012 letter was an error of judgment but did not meet the high threshold of flagrant misconduct required for indemnity costs under r 14.6(4); however their conduct justified an uplift and increased costs under r 14.6(3)(b)(iii) and (v). Costs were apportioned and quantified accordingly.

Citation
[2013] NZHC 2768
Parties
First Plaintiff: Body Corporate 338356; Second Plaintiffs: Daniel James Halaska & Ors; First Defendants: William Arthur Endean; John Edward Endean; Christine Heather Endean; Second Defendant: Clark Brown Architects Limited; Third Defendant: Auckland City Council; Fourth Defendant / First Third Party: James Hardie New Zealand Limited; Fifth Defendant / Second Third Party: Rudnev Door Systems Northisland Limited; Sixth Defendant: Graham Henry William White; Third Third Party: Bostick (Australia) Pty Limited; Fourth Third Party: Bondor New Zealand Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
22 October 2013
Procedural Posture
Civil Construction Defect / Leaky Building / Costs Application Following Summary Judgment
Outcome
Indemnity costs refused; increased costs awarded and apportioned between respondents following summary judgment in favour of Rudnev
Legal Topics
Summary Judgment, Indemnity Costs, Costs Assessment, Discovery, Third Party Claims, Limitation
Civil Construction Law Costs Law Tort Contract Summary Judgment Indemnity Costs Costs Assessment +3 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 3 Authorities cited 7 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

Body Corporate 338356

First Plaintiff

Daniel James Halaska & Ors

Second Plaintiffs

William Arthur Endean; John Edward Endean; Christine Heather Endean

First Defendants

Clark Brown Architects Limited

Second Defendant

Auckland City Council

Third Defendant

James Hardie New Zealand Limited

Fourth Defendant / First Third Party

Rudnev Door Systems Northisland Limited

Fifth Defendant / Second Third Party

Graham Henry William White

Sixth Defendant

Bostick (Australia) Pty Limited

Third Third Party

Bondor New Zealand Limited

Fourth Third Party

Procedural Posture

Civil Construction Defect / Leaky Building / Costs Application Following Summary Judgment

Legal Issues

  1. 1 Whether indemnity costs should be awarded under r 14.6(4) for commencing or continuing claims against Rudnev despite being informed it did not install cladding
  2. 2 Whether the letter dated 26 January 2012 (without prejudice save as to costs) justified indemnity costs
  3. 3 Quantum and apportionment of costs between multiple parties after summary judgment

Ratio Decidendi

The respondents' decision to persist with claims against Rudnev despite the information in the 26 January 2012 letter was an error of judgment but did not meet the high threshold of flagrant misconduct required for indemnity costs under r 14.6(4); however their conduct justified an uplift and increased costs under r 14.6(3)(b)(iii) and (v). Costs were apportioned and quantified accordingly.

Court Disposition

Indemnity costs refused; increased costs awarded and apportioned between respondents following summary judgment in favour of Rudnev

Orders

  • First defendants to pay costs of $18,059.25 to Rudnev together with disbursements as fixed by the Registrar
  • Plaintiffs to pay costs of $9,104.25 to Rudnev together with disbursements as fixed by the Registrar