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