Avonside Holdings Limited v Southern Response Earthquake Services Limited

[2013] NZHC 2322

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2012-409-2536 [2013] NZHC 2322

BETWEEN

AVONSIDE HOLDINGS LIMITED

Plaintiff

AND

SOUTHERN RESPONSE EARTHQUAKE SERVICES LIMITED

Defendant

Hearing:

On the papers

Counsel

GDR Shand and AME Parlane for Plaintiff

C R Johnstone and S E Waggott for Defendant

Judgment:

6 September 2013

COSTS JUDGMENT OF MACKENZIE J

Idirect that the delivery time of this judgment is 3pm on the 6th day of September 2013.

Solicitors:             Grant Shand, Christchurch, for Plaintiff

Wynn Williams Lawyers, Christchurch, for Defendant

AVONSIDE HOLDINGS LIMITED v SOUTHERN RESPONSE EARTHQUAKE SERVICES LIMITED [2013]

NZHC 2322 [6 September 2013]

[1] In my judgment delivered on 11 July 2013 I reserved costs and invited memoranda if counsel were unable to agree.1 Memoranda have been filed. Both parties seek costs, as the successful party.

[2] I have reached the conclusion costs should lie where they fall and there should be no award of costs. I set out my reasons for that conclusion.

[3] The point in issue in the proceeding was the maximum  liability of  the defendant under the insurance policy. Under the policy  option chosen by the plaintiff, the insurance proceeds will become payable when the plaintiff buys another house.  In fixing the maximum amount to be paid, the Court was required to address a number of items. So far as it is appropriate to regard acceptance of one or other party’s position on an item as success, the plaintiff was successful on one item. On the others, the defendant was successful. So, each party has had a measure of success.

[4]     There had also been an issue as to the amount payable by the insurer for loss of rents. That was settled by the parties before the hearing commenced. It is not appropriate to take that into account in fixing costs.

[5] Counsel for the plaintiff submits that the plaintiff has achieved economic success in that it has recovered more than the defendant had offered in settlement of the claim, and that the plaintiff was unable to obtain settlement without the issue of the proceedings. I do not find that submission persuasive. As I have briefly described, the Court was not required to determine the amount payable by the defendant to the plaintiff. Rather, it was required to determine the maximum amount which will be payable under the policy when the plaintiff purchases another house. That has not yet occurred. So the plaintiff has not been successful in the sense of obtaining a judgment against the defendant in the proceedings. The plaintiff has not been kept out of its money until the proceedings were determined.

[6]   Because each party has had a measure of success, and because the proceeding has not resulted in a money judgment in favour of the plaintiff, it is not appropriate

1       Avonside Holdings Ltd v Southern Response Earthquake Services Ltd [2013] NZHC 1433.

to apply the general principle in r 14.2(a) of the High Court Rules, that the party who fails with respect to a proceeding should pay costs to the party who succeeds.

[7]     It was in the interests of both parties to obtain a determination from the Court of the maximum amount payable under the policy. In those circumstances, and bearing in mind that the positions of each party have to some extent been upheld, it is appropriate that costs lie where they fall.

[8]      There will be no order as to costs.

“A D MacKenzie J”