Bligh v Earthquake Commission - [2018] NZHC 2392

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2013-409-001333

[2018] NZHC 2392

BETWEEN
DEREK RICKY BLIGH

Plaintiff

AND

EARTHQUAKE COMMISSION

First Defendant

AND

IAG NEW ZEALAND LIMITED

Second Defendant

Hearing: 15 May 2018

Appearances:

P J Napier for the Applicant, Grant Shand R J Lynn for the Plaintiff/Respondent

No appearance for the First Defendant/Respondent P M Smith for the Second Defendant/Respondent

Judgment:

11 September 2018

JUDGMENT OF NATION J ON REVIEW AS TO COSTS

Introduction

[1] Derek Bligh (Mr Bligh) sued the defendants (EQC and IAG) in relation to damage to his house allegedly sustained in the Darfield earthquake of 4 September 2010. His claims were to have been the subject of a trial commencing on Monday 31 October 2016.

[2] Claims Resolution Service Limited (CRSL), a litigation funder, had been funding Mr Bligh’s proceedings. The legal firm of Grant Shand had been representing Mr Bligh. The principal of the firm was and is the lawyer Grant Shand (Mr Shand).

BLIGH v EARTHQUAKE COMMISSION [2018] NZHC 2392 [11 September 2018]

[3] Shortly before the trial was due to begin, CRSL cancelled its contract with Mr Bligh. As a consequence, Grant Shand ceased representing Mr Bligh. At the scheduled commencement of the trial on 31 October 2016, Mr Ferguson, the Grant Shand counsel representing Mr Bligh, sought and was granted leave to withdraw. Mr Bligh did not appear in Court at that time. The Court entered judgment by default against him.1

[4]Mr Bligh was subsequently able to have the judgment set aside.2

[5]In a judgment of 12 February 2018, Associate Judge Osborne ordered:3

(a) Mr Bligh and CRSL to pay to EQC its reasonable solicitor/client costs and disbursements incurred in relation to this proceeding in the period 28-31 October 2016;

(b) As between Mr Bligh and CRSL, the costs awarded to EQC at (a) shall be borne 33.3 per cent and 66.7 per cent respectively;

(c) Mr Bligh, CRSL and Grant Shand to pay to IAG:

(i)its reasonable solicitor/client costs and disbursements incurred in relation to this proceeding in the period 28-31 October 2016; and

(ii)a sum representing 25 per cent of its reasonable solicitor/client costs and disbursements of preparation for the 31 October 2016 hearing to be fixed by the Registrar;

(d) As between Mr Bligh, CRSL and Grant Shand, the costs awarded to IAG at (c) shall be borne 20 per cent, 40 per cent and 40 per cent respectively;

(e) CRSL and Grant Shand each to indemnify Mr Bligh in a sum equivalent to 40 per cent of the total sum Mr Bligh is required to pay to EQC and IAG pursuant to the costs judgment in Bligh v Earthquake Commission;4

1      Bligh v Earthquake Commission [2016] NZHC 2619.
2      Bligh v Earthquake Commission [2017] NZHC 995.
3      Bligh v Earthquake Commission [2017] NZHC 3179.
4      Bligh v Earthquake Commission [2017] NZHC 2964. In that judgment, the Associate Judge ordered Mr Bligh pay costs…

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 Bligh v Earthquake Commission

Details

AGLC: Bligh v Earthquake Commission [2018] NZHC 2392
Case: [2018] NZHC 2392
Decision Date: 11 September 2018

CaseChat Overview and Summary

Derek Bligh sued the Earthquake Commission (EQC) and IAG over earthquake damage to his house. EQC and IAG sought costs from Mr Bligh after he defaulted in proceedings against them. Mr Bligh had been funded by Claims Resolution Service Limited (CRSL), and represented by Grant Shand. CRSL cancelled its funding contract with Mr Bligh and Grant Shand ceased to represent him. At the scheduled start of trial, Mr Bligh did not appear in Court. The trial Judge granted leave for Grant Shand to withdraw and entered judgment by default against Mr Bligh. Associate Judge Osborne ordered Mr Bligh and CRSL to pay EQC and IAG their costs from 28-31 October 2016. Grant Shand was ordered to pay EQC and IAG costs from 28-31 October 2016 and also 25 per cent of their costs incurred in preparing for the trial. CRSL and Grant Shand were ordered to indemnify Mr Bligh for 40 per cent of the costs he was ordered to pay to EQC and IAG. CRSL and Grant Shand were also ordered to indemnify Mr Bligh for 40 per cent of the costs he incurred in having the default judgment set aside. Grant Shand applied for review of the Associate Judge’s costs order. The High Court found that, although Grant Shand was at fault for failing to address the possibility of withdrawal early enough, it was not in breach of its duty to the Court to avoid an unnecessary adjournment of the trial. Grant Shand’s conduct did not put the defendants to unnecessary costs and the Court’s decision to allow it to withdraw was not a breach of its duty to the Court. The Court quashed the orders requiring Grant Shand to pay costs in the proceedings to Mr Bligh, EQC and IAG.

Orders