Post on 14-Aug-2020
DRIESSEN v THE EARTHQUAKE COMMISSION AND SOUTHERN RESPONSE EARTHQUAKE
SERVICES LTD [2016] NZHC 1048
IN THE HIGH COURT OF NEW ZEALAND
CHRISTCHURCH REGISTRY
CIV-2013-409-1643
[2016] NZHC 1048
BETWEEN
H D DRIESSEN
Plaintiff
AND
THE EARTHQUAKE COMMISSION
First Defendant
SOUTHERN RESPONSE
EARTHQUAKE SERVICES LIMITED
Second Defendant
Hearing:
On the papers
Counsel:
A J D Ferguson for the Plaintiff
N Evans and J Knight for the First Defendant
A L Holloway, E B Sweet and K J Clendon for the Second
Defendant
Judgment:
19 May 2016
JUDGMENT OF NICHOLAS DAVIDSON J
Introduction
[1] The plaintiff Mrs Driessen seeks an order for costs and disbursements against
the Earthquake Commission (EQC) and Southern Response Earthquake Services Ltd
(Southern Response). Sadly Mr Driessen died in January 2014.
[2] These proceedings were commenced in November 2013. Settlement with
Southern Response was achieved immediately before trial which was set down for
29 February 2016. EQC settled in 2015 and acknowledged the claim was over cap
in May of that year. Costs were left for the court to determine.
[3] Mrs Driessen seeks $50,801 for costs, and $46,393.92 for disbursements in
terms of Schedules 1 and 2 attached.
[4] EQC does not oppose an award of costs in the sum of $6,865.50, and
reasonable disbursements of $3,897.98, but opposes anything beyond that. Its
position is reflected in Schedules 1 and 2 attached.
[5] Southern Response says that the proceeding was settled the afternoon before
trial and for several reasons says that costs should lie where they fall. It has a
fall-back position if that submission is rejected. Its position is also reflected in
Schedules 1 and 2 attached.
[6] The application is substantially based on the positions adopted by the
defendants before the proceedings were commenced in November 2013, and the
evolution of those positions up to settlement. Mrs Driessen says that EQC’s position
was first that its liability was about $58,504, and Southern Response said its liability
was for paths and driveways, about $20,000. The repair work was assessed as “under
cap”.
[7] The plaintiff says that as a result of the proceedings, and their eventual
settlement, EQC paid Mrs Driessen $153,422 in November 2015, and Southern
Response paid $358,232 in March 2016. The plaintiff says she has succeeded, as the
proceedings were justified, and there should be an award of costs and disbursements
in her favour.
Narrative
[8] The proceedings concern a single-storey house in Kaiapoi with brick and
concrete veneer cladding, on a perimeter ring foundation with concrete piles. The
home was badly damaged in the Canterbury earthquakes. Most of the damage was
to the foundations, and most of that was caused by the earthquake on
4 September 2010.
[9] EQC and Southern Response accepted claims by Mr and Mrs Driessen, in
principle. EQC considered the damage was “under cap” and took the position that
the house had major pre-existing damage/settlement issues, so that no foundation
work was required to be paid for or undertaken by EQC. As at 7 August 2012, nearly
two years after the 4 September 2010 earthquake, it had assessed the costs of repair
at $58,540.
[10] Proceedings were commenced in November 2013 against EQC and Southern
Response.
[11] Southern Response at first adopted the same position as EQC as to the
damage, the repair strategy, and that the repair costs were under cap. Then in
April 2014 it changed its position, recommending engineering and geotechnical
work which included jacking of the house, and other works which would cost
$206,528 plus $23,119 for “out of scope EQC items”. A few months later it further
changed its position when Aurecon recommended remediation by re-levelling using
MBIE Lifting Option 1 or 2, and local repairs to the cladding and roofing.
[12] In October 2014 EQC changed its earlier position that most of the foundation
damage pre-existed the earthquakes.
[13] A joint expert report was made on 30 March 2015. The engineer advising
Southern Response recommended remediation by re-levelling using MBIE Lifting
Option 1, and repairing and replacing parts of the cladding. On 17 April 2015
Southern Response produced a DRA that recommended this work with estimated
costs of $204,545 plus $22,419 “out of scope”.
Position at setting down
[14] On 11 May 2015 the action was set down. At that time, Southern Response’s
position was reflected as set out in the paragraph above. EQC said that the house
could be repaired for $181,324. On 29 May 2015 EQC formally acknowledged the
repair costs were over cap, with $37,000 apportioned to the September 2010
earthquake.
Settlement with EQC
[15] On 12 November 2015 Mrs Driessen formally settled with EQC and was paid
$153,422, and then discontinued proceedings against it. The delay in concluding
and executing settlement from May 2015 was said by EQC to be the result of
disagreement with Southern Response about apportionment of liability, which
seismic events caused what damage, and costs.
Settlement with Southern Response
[16] The Southern Response witness statements recommended that MBIE Lifting
Option 2 should be employed, removing and replacing all the cladding. Then on
8 December 2015 Southern Response said the house could be re-levelled based on a
mechanical lift and screw pile strategy at a cost of $307,752. It made a without
prejudice offer on 18 December 2015, of $302,562.
[17] The total remedial cost with the EQC settlement came to $455,985 at that
point. However, the offer by Southern Response made no provision for payment of
costs or disbursements. Mrs Driessen provided a schedule of costs but there was no
response to that.
[18] On 15 February 2016 Southern Response said that it would either underpin
the house foundation after re-levelling at a cost of $393,862, or replace the
foundations at a cost of $423,491.
[19] An open offer was made by Southern Response on 18 February 2016 to pay
$321,120, which with the EQC settlement came to $474,543, with costs to be fixed
by the court if necessary.
[20] On 26 February 2016 Southern Response said it would cost $495,457 to
remediate the house. It offered to pay the plaintiff $358,323, which with the EQC
payment came to a total of $511,655, costs aside. Mrs Driessen accepted the offer
on 28 February 2016.
Discussion
[21] When EQC settled with Mrs Driessen, her costs and disbursements calculated
on a Scale 2B basis came to $49,551. Counsel Mr Ferguson submits that a
reasonable contribution towards costs and disbursements should be paid and he
adopts the rates in the High Court Rules (HCR). The court has a discretion, but must
exercise it subject to HCR 14.2 to 14.17.1
[22] Mr Ferguson submits correctly that a commonsense approach should be taken
as to which party has succeeded, whether in whole or in part. The success of the
plaintiff is here said to lie in the fact that the proceedings resulted in recovery of
(much) more money than she was able to achieve without bringing the proceedings.
Counsel refers to authority including Fox v Foundation Piling Ltd.2
[23] The fact that a party came up short of what it claimed does not negate a costs
order. Success may be reflected in a complete win, or a win in the sense that viewed
overall, one party substantially succeeded. There may have been legitimate contest.
Often a successful party will not succeed in all respects.3
[24] A costs judgment is not to be reached simply by identifying which party pays
money to another. It depends on what was claimed, the position taken in the
litigation, and the result. However, where a claimant essentially succeeds by
pressing and sustaining litigation, then that claimant should be regarded as the
successful party and here in this long, and in this context, trying litigation,
Mrs Driessen has largely been vindicated.
[25] Costs principles in other jurisdictions may be of assistance, but New Zealand
has its own approach and there are differences in practice and procedure.
HCR 15.23 provides that where proceedings are discontinued, a plaintiff must pay
costs up to and including the discontinuance, but that relates more to circumstances
where the plaintiff chooses not to proceed rather than this type of negotiated
settlement. Counsel cites authority that the discretion to order “otherwise” under
HCR 15.23 may be exercised in the interests of justice where it is just and equitable
to do so.4 I agree, and this is such a case. HCR 15.23 contemplates an enquiry into
what the court should do in the interests of justice.5 In Earthquake
Commission v Whiting, the Court of Appeal held that costs could be awarded against
1 Body Corporate 97010 v Auckland City Council (2001) 15 PRNZ 372 (CA) at [19].
2 Fox v Foundation Piling Ltd [2011] EWCA Civ 790, [2011] 6 Costs LR 961 at [61] and [64].
3 Goodwin v Bennetts UK Ltd [2008] EWCA Civ 1658 at [13].
4 Powell v Hally Labels Ltd [2014] NZCA 572 at [19].
5 Earthquake Commission v Whiting [2015] NZCA 144 at [66].
EQC because the proceedings commenced against it were justified and when EQC
changed its position the plaintiffs were entitled to discontinue.
[26] Mr Ferguson, counsel for Mrs Driessen, puts the position succinctly:
In summary:
(1) Before the proceedings EQC’s position was that it would
cost $58,540 to repair the earthquake damage to the house
and Southern Response’s was that its exposure was limited
to about $20,000 for paths, driveway fences etc;
(2) In November 2015 EQC paid Mrs Driessen $153,422
(including excesses) excluding costs to settle the claim;
(3) At the first case management conference Southern
Response’s position was that it would cost $58,540 to repair
the earthquake damage to the house;
(4) On 28 February 2016 Southern Response agreed to pay
Mrs Driessen $358,232.
[27] Costs calculated under Category 2, band B are sought for the steps set out in
Schedule 1 to this judgment, apart from item 30 for witness statement preparation
where the band C calculation of 5 days is sought, and item 33, preparation for
hearing, for which the band B allowance of 3 days is submitted inadequate and the
band C allowance of 5 days is submitted should apply. Five witness statements in
chief and five witness statements in reply were prepared. Counsel submits five days
preparation was in order. The trial was set down for seven days, and most of the
preparation was complete when settlement was reached.
[28] Mr Ferguson says Southern Response served evidence of a new expert
witness and documents in support on Friday 26 February 2016, when the trial was
due to commence the following Monday.
[29] Disbursements are sought under HCR 14.12 as reasonably necessary for the
conduct of proceedings as set out in Schedule 2.
EQC
[30] EQC says a cut off for costs against it of 29 May 2015 should be recognised,
as by then it formally recognised that the claim was over cap although settlement
was not concluded until November 2015.
[31] EQC does not oppose scale costs and reasonable disbursements, but says it
should only be liable for 50 per cent of those, to reflect the fact it was one of two
defendants when separate claims were brought. Hence, it agrees it should pay costs
in the sum of $6,865.50 and reasonable disbursements of $3,897.98, a total of
$10,763.48 as shown in Schedules 1 and 2. This calculation turns largely on the
submissions that its liability for costs should cease on 29 May 2015.
[32] EQC opposes the application for a single award of costs payable by both
defendants.
[33] New Zealand authority is settled that costs in discontinued earthquake
damage proceedings will be awarded only up to the point at which EQC paid the
sums accepted by the plaintiff.6 After that point, should EQC “unnecessarily” be
kept in the proceeding, the plaintiff is at risk of a costs award. There is no warrant
for that applying here. EQC technically remained in the proceedings until settlement
was formally concluded, but its active participation with the plaintiff came to an end
in May 2015.
[34] The argument for a 50 per cent award against EQC is said to be consistent
with authority.7 The rationale is that the proceeding raised separate claims against
the two defendants, and the plaintiff did not allege the liabilities to be joint, or joint
and several in the alternative.
Southern Response
[35] Southern Response’s position is as reflected in Schedules 1 and 2.
6 Ryde v Earthquake Commission [2014] NZHC 2763.
7 See Whiting v Earthquake Commission [2014] NZHC 1736 at [52] - [56], Ryde v Earthquake
Commission, above n 6 at [46], and Van Limburg v Earthquake Commission [2014] NZHC 2764
at [16].
[36] Counsel submits that costs should lie where they fall and that Southern
Response was joined to the proceedings prematurely at a point when EQC
maintained the plaintiff’s claim was below cap. Secondly, it says that the key issue
which prevented settlement, namely the question whether to repair or replace the
house, has been settled on the basis of repair as it always contended.
[37] Proceedings were issued against EQC and Southern Response on
13 November 2013. Between March and June 2014 Southern Response investigated
the claim and put a repair methodology to the plaintiff on 15 July 2014. That repair
methodology evolved, as described above. The repairs were clearly over cap well
before 29 May 2015 when EQC formally advised the plaintiff to that effect.
[38] Southern Response accepts there was some delay before the plaintiff could
settle with EQC, as there was debate between the defendants regarding
apportionment of damage between earthquakes. Southern Response says it was
correct in its stance that the September 2010 earthquake caused most of the damage
and that was significant because the seismic forces were larger than an SLS design
event. It seems from counsels’ submissions that Mr Thompson’s geotechnical
evidence for the plaintiff was brought to account in generating the settlement.
[39] Overall, Southern Response says that it responded “responsibly and
appropriately” as new information came to light, and that up until 29 May 2015 EQC
said the claim was under cap. I have said that this does not quite square with the
understanding held by Southern Response in 2014 when it put a proposal for repair
methodology to the plaintiff on 15 July 2014, later revised on 24 April 2015. It is
true that the ultimate responsibility for resolution did not pass to Southern Response
until the EQC position was resolved, by settlement reached in May 2015, with
discontinuance on 19 November 2015, but Southern Response carried the burden of
defence largely on its own after May 2015.
[40] Addressing the merits in the round, Southern Response says that the plaintiff
first produced evidence from an expert quantity surveyor that the cost to rebuild the
house would be $849,804.70, and settlement in the end was based on a total repair
cost of $511,655.
[41] If costs are to be awarded, then counsel for Southern Response submits that
there are elements of the plaintiff’s claim which are unwarranted or should be
revised. Schedules 1 and 2 attached summarise Southern Response’s position. To
clarify the position of Southern Response reflected in the Schedules, the “costs
inappropriately claimed” and the “inappropriately claimed disbursements” are set out
as follows:
Costs
(a) For an appearance at an issues conference that was determined on the
papers;8
(b) For full scale costs on discovery where no formal discovery process
took place, the plaintiff did not prepare a formal list or affidavit of
documents and her informal discovery consisted of an email attaching
a builder’s report and informal statements about the property (a total
of 11 pages);9
(c) For two separate allocations of full scale costs on inspection, where
no formal discovery process took place and informal discovery
consisted of 16 documents produced by the first defendant and
6 documents produced by Southern Response; Southern Response
considers a half day allocation to be appropriate given the scope of
informal discovery;
(d) Two separate allocations on a band “C” basis for preparation of briefs
for a matter of average complexity in which a normal amount of time
should be considered reasonable; and
(e) For full scale costs on a band “C” basis for preparation in
circumstances in which the plaintiff has provided no explanation to
support the position that it would be reasonable to have spent a
comparatively large amount of time on this step, and where the
8 Minute of Wylie J dated 12 May 2015.
9 Minute of Wylie J dated 4 February 2014 at [7].
plaintiff ultimately accepted an offer to settle that had been made two
days earlier. Southern Response considers that a one day allocation
for the plaintiff’s preparation is reasonable in this case.
Disbursements
(f) An invoice for “Cowie” of $517.50. Mr Cowie is not an expert in this
proceeding and there was no indication he would be called as a
witness. Further, the invoice relates to preparation of a drawing that
was served annexed to Mr Thompson’s 23 February brief and
concerned a matter that was not in contention (i.e. the slope of the
floor).
(g) An invoice for “8D costing” for $4,163.00. 8D costing is not an
expert and there was no indication a representative of 8D costing
would be called as a witness in this case. No explanation has been
provided as to what this invoice relates to, however, we note that the
director of 8D Project Management Ltd is Bryan Staples, and it shares
an address for service with Claims Resolution Services Ltd, the
plaintiff’s litigation funder;
(h) An invoice of $862.50 for “We Power/EQS IDA”. No explanation
has been provided as to what this invoice relates to. Counsel has
attempted to identify what We Power/EQS IDA is, however they are
not registered with the Companies Office, nor do they return any
search results when entered into www.google.com. A company called
“We Power Ltd” is registered with the Companies Office, however it
entered liquidation on 26 June 2014. We Power/EQX IDA were not
an expert and there was no indication a representative would be called
as a witness in this case; and
(i) An invoice of $6,500.96 for Owen Thompson that relates to further
testing and his final brief served well out of time on 23 February 2016
to which Southern Response would have raised objections as to
admissibility had the matter proceeded to a hearing.
[42] If an award of costs is to be made, Southern Response says there should be a
reduction under HCR 14.7, given what it says is its successful resistance to the
plaintiff’s claim that new foundations were required. HCR 14.7 relevantly provides:
14.7 Refusal of, or reduction in, costs
Despite rules 14.2 to 14.5, the court may refuse to make an order for costs or
may reduce the costs otherwise payable under those rules if—
…
(d) although the party claiming costs has succeeded overall, that party
has failed in relation to a cause of action or issue which significantly
increased the costs of the party opposing costs; or
…
(f) the party claiming costs has contributed unnecessarily to the time or
expense of the proceeding or step in it by—
(i) failing to comply with these rules or a direction of the court;
or
(ii) taking or pursuing an unnecessary step or an argument that
lacks merit; or
…
(g) some other reason exists which justifies the court refusing costs or
reducing costs despite the principle that the determination of costs
should be predictable and expeditious.
[43] Southern Response says settlement was in the end achieved on the basis of
the repair methodology it proposed. The final offer of settlement was made on
26 February 2016 and it was accepted on 28 February 2016. Counsel makes
something of these two days as constituting delay by the plaintiff which
unnecessarily cost Southern Response as it continued preparation for trial.
[44] The development of these submissions emphasises Southern Response’s
argument that the litigation was drawn out unnecessarily because the plaintiff pushed
for a full rebuild rather than repair, but otherwise it says that the total award
calculated under the High Court scale should be costs of $25,241 and disbursements
of $34,342.12.
[45] Southern Response would accept a costs calculation of $13,795.50 and
disbursements of $24,889.08, being half of those incurred prior to discontinuance
against EQC, and the balance of the remainder.
[46] However, it then submits that there should be a reduction for Southern
Response’s incurred costs of preparation for hearing occasioned by the “late
acceptance” of the settlement offer in the sum of $6,690, briefs prepared because of
the late service of geotechnical evidence by the plaintiff of $5,575, and the
professional fees of Hamish Nelson, a geotechnical engineer responding to new
geotechnical evidence of Owen Thompson received less than a week before the
hearing, of $8,650.
[47] With these adjustments Southern Response submits it should be liable for no
more than $20,525.83 in total, including both costs and disbursements. These
figures do not tally precisely but this does not matter in the final disposition by this
judgment.
Discussion
Some issues of principle
[48] Mr and Mrs Driessen were justified in issuing proceedings, and by doing so
Mrs Driessen has achieved a settlement far in excess of the position adopted by EQC
and Southern Response at the outset. This is central to this costs judgment. Faced
with serious damage to their home the plaintiffs for a very long time faced a minimal
and erroneous response from EQC.
[49] Mrs Driessen did not have to discontinue proceedings against EQC until the
apportionment issue was resolved between EQC and Southern Response. It was
appropriate for her to wait until 12 November 2015 to file a notice of discontinuance.
However, EQC’s active participation fell away when it accepted its over cap liability
by it in May 2015.
[50] It is not strictly, or decisively correct to say that Southern Response was
‘successful’ in the position it adopted that there should not be a rebuild, but clearly
the final negotiations were based on costs associated with repair. As counsel for
Mrs Driessen says, just before trial a sum of $511,000 was offered, including the
EQC settlement payment, and her case reached compromise by way of a
money-based settlement, the key element of which was the amount of money to be
paid. The parties took different resolution positions and compromise was sensible for
homeowners who bear a disproportionate costs risk in litigation of this kind.
Accepting the settlement sum offered by Southern Response did not mean that
Mrs Driessen abandoned her position that there should have been a rebuild.
[51] I disagree that Mrs Driessen should not have issued proceedings against
Southern Response until she settled with EQC. Mr and Mrs Driessen were right that
the property required repairs, if not a rebuild, well in excess of EQC’s liability and
taking that position necessitated joining both EQC and Southern Response as
defendants. As counsel for Mrs Driessen says, if Mrs Driessen waited for EQC to
settle before suing Southern Response, she would have had to duplicate the
earthquake list case management process before having the case set down for trial.
[52] EQC’s interest largely ended only when it formally acknowledged the work
required was over cap and later negotiated an apportionment of liability with
Southern Response. Southern Response seemed to recognise the over cap status well
before that, in 2014 on the material before the court.
Some issues of detail
[53] I do not regard the delay between a Friday evening settlement offer and
acceptance on Sunday afternoon as counting against a costs award or as relevant to
the amount of costs that are to be paid. This was a matter of the greatest moment to
Mrs Driessen. There was conflicting expert evidence, and she compromised at a
figure below the claim that was made by her. It no doubt took a great deal of care
and thought, given the significance of the outcome to her.
[54] A further element of the offset claim by Southern Response is the late filing
of geotechnical evidence. Mr Ferguson refers to the report of the on-site deep
geotechnical investigation being served after Mrs Driessen served her evidence and
that she was compelled to reply through an expert retained for her. There were
suggestions that the geotechnical engineers discuss the case but this did not occur
until 2016.
[55] Southern Response engaged expert survey evidence, and Mrs Driessen
responded through witness Mr Cowie.
[56] A repair and rebuild estimate was prepared by a quantity surveyor,
8D Costing, and was annexed to the statement of claim when proceedings were filed.
An allowance is made for this.
[57] The We Power/EQS IDA invoice was for a technical report which identified
and photographed earthquake damage including a floor level survey with a
reinstatement methodology proposed. The report was referred to by all of
Mrs Driessen’s experts and was included in the common bundle.
[58] I have allowed scale 2B costs rather than category C as the issues were
relatively straight forward. I have reduced the allowance for informal discovery and
inspection. In some instances I have made adjustments after considering all
submissions. I have not accepted the large deductions sought by Southern Response
except for the response required late in the piece for the late provision of
geotechnical evidence. The plaintiff’s adherence to the timetable was distinctly
patchy but this was an unnecessary late imposition on Southern Response. I have
allowed $7,500 for this.
[59] Some disbursements were billed after May 2015 but I infer invoiced some
work before then. The EQC position was not concluded formally until
November 2015.
Conclusion
[60] Schedules 3 and 4 represent the court’s conclusion as to the competing
positions.
[61] For costs and disbursements the numbers adopted are those in Schedules 1
and 2, and costs are allocated against EQC and Southern Response broadly in line
with the reasons expressed in this judgment.
Disposition
[62] It is ordered that EQC is to pay to the plaintiff the sum of:
(a) $6,618.00 costs; and
(b) $11,114.08 disbursements.
[63] It is ordered that Southern Response is to pay to the plaintiff the sum of:
(a) $22,033.00 costs; and
(b) $25,609.30 disbursements.
…………………………………….. Nicholas Davidson J
Solicitors: Grant Shand (Christchurch) for the Plaintiff Chapman Tripp (Wellington) for the First Defendant DLA Phillips Fox (Auckland) for the Second Defendant
SCHEDULE 1
COSTS CLAIMED BY PLAINTIFF AND REPLY BY EQC AND SOUTHERN RESPONSE
Item Description Cat Days Rate No Total EQC’s Reply as to
amount claimed
Southern Response’s
Reply as to amount
claimed
Southern Response Comment
1 Commencement – 13
Nov 2013
B 3.0 $1,990.00 1 $5,970.00 Does not oppose $5,970.00
10 Preparation for first
CMC – 4 Feb 2014
B 0.4 $1,990.00 1 $796.00 Does not oppose $796.00
11 Filing memoranda (a) for
first CMC – 29 Jan 2014;
and (b) two further
CMCs
B 0.4 $1,990.00 3 $2,388.00 Does not oppose $2,388.00
13 Appearance at first CMC
– 4 Feb 2014
B 0.3 $1,990.00 1 $597.00 Does not oppose $597.00
14 Preparation for and
attendance at issues
conference – 11 May
2015
B 0.5 $2,230.0010
1 $1,115.00 Opposes – no
appearance; determined
on the papers
$00.00 No appearance at issues
conference
15 Preparation for and
attendance at pre-trial
conference
B 0.5 $2,230.00 1 $1,115.00 Opposes – Postdates
29 May 2015
$1,115.00
20 Discovery B 2.5 $1,990.00 1 $4,975.00 Opposes – should be 0.5
days only ($995)
$00.00 No formal discovery process
21 Inspection B 1.5 $1,990.00 2 $5,970.00 Should be 1 only -
$2,985.00
$995.00 Plaintiff has claimed twice; Half
day for inspection appropriate
given scope of informal discovery
30 Plaintiff’s preparation of
briefs
C 2.5 $2,230.00 2 $11,150.00 Opposes – postdates
29 May 2015
$5,575.00 Band “C” not appropriate
1.5 days
31 Plaintiff’s preparation of
briefs
B 2.5 $2,230.00 1 $5,575.00 Opposes – postdates
29 May 2015
$5,575.00
33 Preparation for hearing C 3.0 $2,230.00 1 $11,150.00 Opposes – postdates
29 May 2015
$2,300.00 Band “C” not appropriate;
Appropriate to reduce to 1 day
given offer accepted
Total $50,801.00 $13,731.00 $25,241
*Corrected $25,311.00
EQC’s Share – 50% $6,865.50
Southern Response’s Share – 50% $12,620.50
*Corrected $12,655.50
* Corrected figure
10
Counsel for EQC further notes that the $2,230 daily recovery rate (effective from 1 July 2015) was not in force in May 2015.
SCHEDULE 2
DISBURSEMENTS CLAIMED BY PLAINTIFF AND REPLY BY EQC AND SOUTHERN RESPONSE
Item Description Date Total EQC’s Reply as to Amount claimed Southern
Response’s
Reply
Southern
Response’s
Submitted
Position
Southern Response
Comment
1 Service No invoice provided $57.50 Opposes – EQC was served by email;
no evidence that the plaintiff incurred
any expense in serving the
proceeding
$57.50 $28.75
2 Certificate of
Title
Invoice from Grant Shand to
plaintiff dated 10 November
2013 for “CT”
$11.90 Does not oppose as to $5.95 – invoice
charging the plaintiff for this
provided
Opposes as to $5.95 – invoice states
cost of certificate of title was only
$5.17 plus GST – i.e. $5.95
$5.17 $2.59 Incorrect amount claimed
based on invoice; to be split
50:50 with EQC
3 Filing fee Invoice from Grant Shand to
plaintiff dated 10 November
2013 for the filing fee
$1,350.00 Does not oppose - invoice charging
the plaintiff provided
$1,350.00 $675.00 To be split 50:50 with EQC
4 Amended
claim
No invoice provided $110.00 Opposes – the plaintiff should bear
costs of amending her pleading
$110.00 $55.00 To be split 50:50 with EQC
5 Cowie Invoice from Cowie to Grant
Shand dated 29 February 2016
$517.50 Opposes – postdates 29 May 2015; no
evidence Mr Cowie’s involvement
was specific to, and reasonably
necessary for, the conduct of the
proceeding
$00.00 $00.00 Not an expert, unnecessary to
obtain because subject matter
not contentious
6 Csiba Invoice from Urban Structural
Services Ltd to plaintiff dated
30 March 2015 ($2,415)
Invoice from Urban Structural
Services Ltd to Claims
Resolution Services dated 19
May 2015 ($4,025)
$6,440.00 Does not oppose – invoices provided
charging plaintiff for this cost
$6,440.00 $3,220.00 To be split 50:50 with EQC
7 8D costing Invoice from 8D Project
Management to the plaintiff
dated 4 September 2013
$4,163.00 Opposes – unexplained how this
invoice was reasonably necessary for,
or specific to the conduct of, the
proceeding
$00.00 $00.00 Not an expert, no ability to
claim for this cost
Item Description Date Total EQC’s Reply as to Amount claimed Southern
Response’s
Reply
Southern
Response’s
Submitted
Position
Southern Response
Comment
8 CGW Invoices from CGW to Grant
Shand dated 31 July 2015
($4,662.24), 30 September 2015
($1,095.19),
18 December 2015 ($2,069.43),
29 February 2016 ($1,748)
Corrected amount based on
invoice, cost up to $3,528.49 to
be split 50:50 with EQC
$9,574.86 Opposes – postdates 29 May 2015, so
not reasonably necessary for, or
specific to, the conduct of the
proceeding against EQC
$9,574.86 $6,696.15 Costs up to $5,757.43 are to
be split 50:50 with EQC
9 Hunt Invoice from Hunt Building
Consultants to Grant Shand
dated 31 July 2015 ($3,528.49),
dated
18 December 2014 ($418.89),
dated 29 February 2016
($1,093.13)
$5,041.62 Opposes – postdates 29 May 2015, so
not reasonably necessary for, or
specific to, the conduct of the
proceeding against EQC
$5,040.51 $3,276.27 Corrected amount based on
invoice, cost up to $3,528.49
to be split 50:50 with EQC
10 We
Power/EQC
IDA
Invoice from We Power QS to
plaintiff dated 22 March 2013
$862.50 Opposes – unexplained how an
“initial damage assessment” from
March 2013 or earlier is reasonably
necessary for, or specific to the
conduct of, a proceeding commenced
in November 2013
$00.00 $00.00 Not an expert, no credentials
or explanation provided for
what this cost relates to
11 Thompson Invoice from Thompson
Geotechnical Ltd to Grant
Shand dated 21 December 2015
($2,113.13),
4 February 2016 ($6,326.15),
29 February 2016 ($6,500.96)
$14,939.96 Opposes – postdates 29 May 2015, so
not reasonably necessary for, or
specific to, the conduct of the
proceeding against EQC
$8,439.00 $8,439.00 Less invoice for further
testing and brief
12 Scheduling
fee
Invoice from Grant Shand to
plaintiff dated 12 June 2015
$1,600.00 Opposes – postdates 29 May 2015, so
not reasonably necessary for, or
specific to, the conduct of the
proceeding against EQC
$1,600.00 $800.00 To be split 50:50 with EQC
13 Bundle
copying
No invoice provided $1,725.08 Opposes – postdates 29 May 2015, so
not reasonably necessary for, or
specific to, the conduct of the
proceeding against EQC
$1,725.08 $1,725.08
14 Hearing fees $00.00 N/A $00.00 $00.00
Total $46,393.92 $7,795.95 $24,917.83 $24,917.84
EQC’s Share – 50% $3,897.98
Southern Response’s Share – 50% $12,458.92
SCHEDULE 3
COSTS AWARDED
Item EQC Southern Response Comment
1 $2,985.00 $2,985.00
10 $398.00 $398.00
11 $1,194.00 $1,194.00
13 $298.50 $298.50
14 $250.00 $250.00 No appearance required
15 $00.00 $1,115.00
20 $995.00 $995.00 1 day - informal discovery
21 $497.50 $497.50 ½ day - for inspection of informal discovery
30 $00.00 $5,575.00 2B
31 $00.00 $5,575.00 2B
33 $00.00 $3,150.00 1.5 days
Total $6,618.00 $22,033.00
SCHEDULE 4
DISBURSEMENTS AWARDED
Item EQC Southern Response Comment
1 $28.75 $28.75
2 $2.59
$2.59
3 $675.00 $675.00
4 $55.00 $55.00
5 $258.75 $258.75 Not expert, but reasonable disbursement
6 $3,220.00 $3,220.00
7 $1,000.00 $1,000.00 Reasonable disbursement but reduced
8 $2,878.00 $6,696.15
Part - pre 29 May 2015
9 $1,764.24
$3,276.27 Split first invoice.
10 $431.75 $431.75
11 $00.00 $14,939.96 Adjustment (below) $7,500.00
12 $800.00 $800.00
13 $00.00 $1,725.08
14 N/A $00.00
Sub-Total $11,114.08 $33,109.30
Less $00.00 -$7,500.00 Late provision of expert evidence
Total $11,114.08 $25,609.30