Aldridge v Hamilton City Council [2013] NZHC 2235 (30 August 2013)

Last Updated: 11 September 2013

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-003773 [2013] NZHC 2235

BETWEEN STEPHEN LESLIE ALDRIDGE, KATHLEEN MARGARET ALDRIDGE AND CAS TRUSTEES LIMITED AS TRUSTEES OF THE SL AND KM ALDRIDGE FAMILY TRUST Appellants

AND THE HAMILTON CITY COUNCIL First Respondent

KERRY MURPHY Second Respondent

Hearing: [On the papers] Appearances: PJ Wright for Appellants

N Campbell and C Goode for First Respondent

P Napier and N Pye for Second Respondent

Judgment: 30 August 2013

JUDGMENT OF WOOLFORD J [as to Costs]

This judgment was delivered by me on Friday, 30 August 2013 at 3.30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Counsel: PJ Wright, Shortland Chambers, Auckland

Solicitors: Heaney & Partners (C Goode), Auckland

Keegan Alexander (P Napier), Auckland

ALDRIDGE v THE HAMILTON CITY COUNCIL & ANOR [2013] NZHC 2235 [30 August 2013]

Introduction

[1] On 16 July 2013, I dismissed an appeal against a determination by the Weathertight Homes Tribunal.[1] I invited the parties to file memorandum if they were unable to agree on costs. They were unable to agree on costs. I have now received memorandum from the appellants and the two respondents.

[2] The appellants accept that costs are payable by them to the first and second respondents. They note the decision of Wylie J that the proceedings should be characterised as category 2 proceedings, being proceedings of average complexity requiring counsel of skill and experience considered average in the High Court. As for the time allocation for the various steps in the proceedings, they submit that all steps should now be fixed as band B on the basis that nothing more than a normal amount of time was necessary for each and every step. On the basis that all steps in the proceedings were to be characterised as 2B, the costs payable to the first defendant total $22,138.75 while the costs payable to the second respondent total

$19,900.

[3] On the other hand, the respondents submit that the preparation of submissions should be allocated to band C because a comparatively large amount of time was required for their preparation. This has the effect of doubling the time allowed for the preparation of submissions from three days to six days. Furthermore, the respondents submit that there should be a 50 per cent uplift on costs on the basis that the appellants have contributed unnecessarily to the time and expense of the proceedings by failing to comply with timetable orders and by the inordinate length of their submissions when finally received.

[4] Having carefully considered the submissions of counsel, I have concluded that the time allowed for preparation of submissions should be doubled from the standard three days to six days because, I am of the view that a comparatively large amount of time was reasonable. I take into account the commentary in McGechan

_{on Procedure}[2] _{that while it is intended that the r 14.3 categorisation for each}

proceeding be made in its early stages, the same does not apply to time banding. The appropriate time banding for each interlocutory step in the proceeding is fixed by the Judge or Associate Judge who deals with that step and the banding for the trial stages is by the trial Judge. The bands may differ at each step. Awarding 2B costs for all steps in a case is unobjectionable because it reflects an average case requiring a normal amount of time for every step but otherwise, a blanket assessment for banding is not desirable nor even possible under the Rules.

[5] However, I am of the view that it is not appropriate to award any uplift to the costs which otherwise would be payable. Although the appellants initially failed to comply with timetable orders requiring their submissions to be filed by 28 August

2012 and there was an increase in the length of their submissions, I am of the view that these matters either, individually or collectively, did not appreciably increase the time required for the proceedings or the expense of the proceedings. I take into account the fact that the appellants’ submissions dealt with both of the cases against the first and second respondent. Both respondents also brought cross-appeals in respect of the issue of contributory negligence. The appellants’ supplementary submissions relating to s 43 of the Building Act were only relevant to the first respondents’ position. Furthermore, the second respondents did not respond to the issues of quantum or general damages in their submissions.

[6] In those circumstances, the following costs are awarded against the appellants:

Step Band Allocation

(First
_Respondent)

Amount (First Respondent

Allocation (Second Respondent)

Amount (Second Respondent)

Commencement of response to appeal

Commencement of cross-appeal

Preparation for 1st case management conference

Filing memoranda for case management conference or mentions hearing on 17 July 2012 and 21 September 2012

B 0.5 day $995.00 0.5 days $995.00

B 1.0 day $1,990.00 1.0 day $1,990.00

B 0.4 days $796.00 0.4 days $796.00

B 0.8 days $1,592.00 0.8 days $1,592.00

Appearance at case management conferences on 17 July

2012 and 21 September

2012

Preparation of written submissions

Appearance at hearing –

principal counsel

_{Appearance at hearing –}

2nd counsel

B 0.6 days $1,194.00 0.6 days $1,194.00

C 6.0 days $11,940.00 6.0 days $11,940.00

B 3.75 days $7,462.50 3 days $5,970.00

B 1.875 days $3,731.25 1.5 days $2,985.00

_Subtotal $29,700.75 $27,462.00

Filing fee for cross-appeal $483.40 $483.40

_{Total cost and disbursements $30,184.15 $27,945.40}

.....................................

Woolford J

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[1] _{Aldridge v Hamilton City Council [2013] NZHC 1784.}

[2] Andrew Beck and Others McGechan on Procedure (online looseleaf ed, Brookers) at

[HR Pt 14.5.01].