Ambrose v Pickard - [2010] NZCA 504

IN THE COURT OF APPEAL OF NEW ZEALAND
CA548/2009
[2010] NZCA 504
BETWEENCHAS AMBROSE

Appellant

ANDAMANDA PICKARD

First Respondent
ANDTROY TAYLOR

Second Respondent

Court:William Young P, Glazebrook and Hammond JJ
Counsel:I G Hunt for Appellant

Respondents in Person

Judgment:5 November 2010 at 2.30pm

(on the papers)

JUDGMENT OF THE COURT

AMs Pickard and Mr Taylor are ordered to pay Mr Ambrose costs of $4,800 and disbursements of $1,331.25.
BThe security paid into Court by Mr Ambrose is to be refunded to him.

REASONS OF THE COURT
(Given by William Young P)
Introduction
[1]        On 24 September 2009 we heard an appeal by Mr Chas Ambrose against a judgment of MacKenzie J delivered on 13 August 2009 in which he dismissed an application by Mr Ambrose for further discovery against Ms Amanda Pickard and her son, Mr Troy Taylor.[1] The documents sought were medical and ACC records. They were said to be relevant to the claim for damages advanced by Ms Pickard and Mr Taylor based on the contention that they had suffered adverse effects as a result of carbon monoxide poisoning caused by the negligence of Mr Ambrose and Rinnai New Zealand Ltd (“Rinnai”). In the course of the hearing before us, Ms Pickard agreed to provide an authority to enable Mr Ambrose to obtain access to the documents which he was seeking. In substance, therefore, his appeal was successful but the only order required of the Court was to set aside the award of costs made against Mr Ambrose, on this issue, in the High Court.[2]
[1]      Pickard v Ambrose HC Wellington CIV-2003-091-143, 13 August 2009.
[2]      Ambrose v Pickard [2009] NZCA 502.
[2]        Before the judgment was released on 22 October 2009, Mr Hunt provided the Court with documents obtained pursuant to the authority. He also invited us to reserve the question of costs for further determination. This we did. We also, at his request, directed that a transcript of what Ms Pickard had herself said to us be typed and provided to the parties.
[3]        The case duly went to trial and the claim by Ms Pickard and Mr Taylor was dismissed in a judgment delivered by MacKenzie J on 21 December 2009.[3]
[3]      Pickard v Ambrose HC Wellington CIV-2003-091-143, 21 December 2009.
[4]        Mr Ambrose has applied now to this Court for an order for costs in relation to the proceedings before us last year. As well Mr Ambrose seeks a direction that the security for costs of $2,370.00 he paid be refunded to him.
[5]        Ms Pickard and Mr Taylor lodged submissions on 19 May 2010, a day later than provided for in the timetabling direction but this is of no particular moment. These submissions made it clear that they intended to seek an extension of time for an appeal against the substantive decision of MacKenzie J. In response, the President directed by minute of 26 May 2010 that:
(a)if they applied for an extension of time to appeal against the judgment of MacKenzie…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ambrose v Pickard

Details

AGLC: Ambrose v Pickard [2010] NZCA 504
Case: [2010] NZCA 504
Decision Date: 5 November 2010

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant, Chas Ambrose, sought relief against Amanda Pickard and Troy Taylor, who were the respondents. The primary issue revolved around the refusal by the High Court to grant further discovery and the dismissal of an application for additional security for costs. The case involved allegations of carbon monoxide poisoning due to the negligence of Mr Ambrose and Rinnai New Zealand Ltd. Mr Ambrose sought access to medical and ACC records of the respondents, which were pertinent to the respondents' claim for damages.

The court had to decide whether the respondents' refusal to provide certain medical records constituted a substantial breach of their discovery obligations. Additionally, the court needed to determine if the respondents' actions warranted costs against Mr Ambrose for the unsuccessful appeal regarding the security for costs. The respondents argued that their actions were mitigated by various factors, including the adjournment of the trial and the pressure of preparing for it. However, the Court of Appeal found that the respondents' breaches of discovery obligations were significant and not adequately excused by the circumstances presented.

The Court of Appeal ruled that the respondents, Amanda Pickard and Troy Taylor, were to pay Chas Ambrose costs of $4,800 and disbursements of $1,331.25. Furthermore, the security paid into Court by Mr Ambrose was to be refunded to him. The court found the amount claimed to be modest, considering the unsuccessful appeal regarding the security for costs.

Orders