Currie v Gordon

[2015] NZHC 2917

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CIV 2012-425-596 [2015] NZHC 2917

BETWEEN

DAVID ALLAN CURRIE AND

LYNETTE FRANCES CURRIE AS TRUSTEES RESPECTIVELY OF THE D A CURRIE FAMILY TRUST AND THE L F CURRIE FAMILY TRUST Plaintiffs

AND

SCOTT HAMISH GORDON First Defendant

AND

SOUTHLAND DISTRICT COUNCIL Second Defendant

AND

DAVID ALLAN CURRIE AND LYNETTE FRANCES CURRIE Third Parties

Hearing:	On the papers
Counsel:	R G R Eagles for Plaintiffs and Third Parties C S Chapman for First Defendant P A Robertson for Second Defendant
Ruling:	20 November 2015

JUDGMENT OF SIMON FRANCE J (Costs ruling)

[1]      In these proceedings the plaintiffs were unsuccessful.  The claim concerned a house where the concrete slab floor had sunk within its perimeter walls.  The case was brought against the builder and the Council.  Costs issues have now arisen.  It is

agreed 2B is the applicable scale.

CURRIE v GORDON [2015] NZHC 2917 [20 November 2015]

Increased costs

[2]      The first issue concerns an application by both defendants for increased costs. By way of background I note that in my judgment I was critical of the plaintiffs’ experts on whom the case was based.  The primary expert had done various tests to establish the causes of the sinking.  In my view the recording of his methodology fell well below the standards expected of an expert.  An example of this was confusion over a soil sample.

[3]      A trial issue was whether the builder had first removed grass and top soil before using fill.  The plaintiffs were reinforced in their allegation that he had not by the appearance of a sample apparently taken from the site.  It was thought it came from beneath the floor and it clearly displayed a quantity of grass inconsistent with a proper scrapping having been done.  However, it emerged at the trial that the sample was not from below the floor.  This was symptomatic of the inadequacies of record keeping by the expert.

[4]      I  mention  this  because  Mr Chapman  for  the  first  defendant  raises  it  in connection  with  the  claim  for  increased  costs.     He  suggests  that  reasonable settlement offers were declined in part because of the misapprehension engendered by this error.   More generally, this type of failing was pointed out, but not acknowledged.   Linked to this is a failure by the plaintiffs to admit facts when required by the defendant.

[5]      The final settlement offer, being a total from both defendants of $85,000, reflected only a portion of the undoubted loss that the plaintiffs had suffered as a consequence of the floor subsiding.  Considered in isolation, it was not unreasonable to decline it.  The issue is whether the deficiencies in the plaintiffs’ case which were shown at trial should have been appreciated at the earlier time so that declining to settle was unreasonable.

[6]      The experts used by the plaintiffs were appropriately chosen.  They had the right experience and qualifications.   I accept that Mr Chapman requested details before  the  hearing  of  the  expert’s  methodology,  and  apparently  this  was  not

forthcoming.  It emerged at trial, under cross-examination, that this would have been because an inadequate process was in fact followed by the expert.

[7]      Whilst the plaintiffs would have been on notice of this type of challenge to their witness, I do not consider the issue went beyond that at that point, and was not so obvious as to make it unreasonable not to settle.  The flaws, at least as I saw them, became clear under cross-examination and were such as to undermine the probative value of the expert’s evidence.  However, it is not always the case that methodology and record keeping flaws will have that effect. Accordingly I am of the view that the case for increased costs is not made out.   The failure to admit facts was not unreasonable (at least as regards some) at the time and I am not satisfied it unduly affected the trial.  Likewise, the rejection of the settlement offers based on reliance on expert opinion was not unreasonable.

Out of town counsel

[8]      The plaintiffs resist paying the costs associated with out of town counsel.  It is agreed the test is whether it was necessary to have out of town counsel.

[9]      The starting point is that this was a building dispute.  It had some technical aspects in the sense that a floor had slumped and the issue was why but it was not a complex case.  The key issue of whether a scraping had been done before fill was used is at its heart a very simple factual inquiry.  Accordingly there is nothing in the case that  required  specialist  skills  or knowledge  beyond  that  of an  experienced general litigator.  I accept that the defendants probably saw it otherwise and so chose counsel  with  experience  in  the  area  but  the  case  was  in  my view  just  general litigation.

[10]     No evidence has been provided by the defendants to suggest efforts were made  to  find  local  counsel.    Mr Eagles  has  identified  three  experienced  local litigators who on the face of things could have conducted the defence.  Mr Chapman surmises that the likelihood of obtaining two of these (one for each defendant) was not great but I am not prepared to speculate.   In the absence of evidence to the contrary I assume they were available.

[11]     The costs associated with out of town counsel are declined.

Expert witness travel

[12]     The key expert for the first defendant was based in New Zealand at the time the issue arose.  He visited the site.  Prior to trial he relocated to the United States. At issue is his air fare.   I do not consider the plaintiffs should meet this.   It is unfortunate for the defendant but it is not a case requiring an overseas expert, and the vagaries of the situation of the expert he chose must fall on the first defendant.  I do not know if AVL was explored, but accept that it was probably necessary to have the expert present during the giving of the plaintiffs’ expert evidence.

Discovery

[13]     The information provided is insufficient for me to understand or resolve the issue.   If required, further memoranda can be filed but unless one party is clearly right, no costs will be recoverable in relation to that.  I suggest the parties should be able to resolve it.

Second respondent’s expert

[14]     Eighteen hours preparation is not excessive.   The attendance at trial other than to testify is.  It was unnecessary.  Reading the transcript would have sufficed. The defendant may only recover travel, accommodation and associated expenses that are linked to the actual giving of his evidence.

Other matters

[15]     The  reasonableness  of  disbursements  is  otherwise  to  be  fixed  by  the

Registrar.

Solicitors:

Heaney and Partners, Auckland

Eagles Eagles & Redpath, Invercargill

Simon France J