Bligh v Earthquake Commission - [2017] NZHC 3179

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2013-409-001333 [2017] NZHC 3179

BETWEEN
DEREK RICKY BLIGH

Plaintiff

AND

EARTHQUAKE COMMISSION First Defendant

AND

IAG NEW ZEALAND LIMITED Second Defendant

Hearing: 27, 28 November 2017

Appearances:

R J Lynn for Plaintiff
N S Wood for First Defendant
P M Smith for Second Defendant
J Moss and G P Davis for Claims Resolution Service Limited
P J Napier for Grant Shand

Judgment:

18 December 2017

Reissued:

12 February 2018

JUDGMENT OF ASSOCIATE JUDGE OSBORNE

[in relation to wasted costs and costs against non-parties]

Introduction

[1] Derek (Ricky) Bligh sued the defendants (“EQC” and “IAG”) in relation to damage to his house allegedly sustained in the earthquake of 4 September 2010. His claims (including the central claim for $596,244.71 as reinstatement costs) were to have been the subject of a trial commencing on Monday, 31 October 2016. The trial
did not proceed. Claims Resolution Service Ltd (CRSL), a litigation funder which had

BLIGH v EARTHQUAKE COMMISSION [2017] NZHC 3179 [18 December 2017]

been funding Mr Bligh, cancelled its contract with him (“the funding contract”). As a consequence, the firm of Grant Shand Barrister and Solicitor (“Grant Shand”)1 ceased representing Mr Bligh. Mr Bligh did not appear in Court when the case was called. The Court entered judgment by default against him.2

[2] Mr Bligh was subsequently able to have the judgment set aside.3 The Court has ordered Mr Bligh to pay to EQC and IAG the costs and disbursements of the setting aside application.4

[3] The Court has allocated a fresh trial date and directions have been made as to the service of further briefs of evidence by the parties.

[4] Wasted costs have been incurred by the three parties as a result of the trial not proceeding on 31 October 2016 and judgment being entered by default. Mr Bligh incurred irrecoverable party/party costs in obtaining the indulgence of the setting aside of the default judgment. EQC and IAG incurred attendances in relation to what ultimately became the adjournment of the trial.

[5] The parties variously hold CRSL and Grant Shand accountable for wasted costs upon the basis that they caused or contributed to the events which created the wasted costs.

The applications

[6] This judgment deals with four applications:

(a) EQC and IAG each apply for wasted costs orders against Mr Bligh;

(b) EQC also applies for wasted costs orders against CRSL as a non-party;

1      All references in the judgment are (unless the context indicates to the contrary) to the firm of Grant
Shand, rather than Mr Shand personally.
2      Bligh v Earthquake Commission [2016] NZHC 2619.
3      Bligh v Earthquake Commission [2017] NZHC 995.
4      Bligh v Earthquake Commission [2017] NZHC 2964.

(c) IAG applies for wasted costs orders against both CRSL and Grant

Shand as non-parties; and

(d)Mr Bligh applies for an order that CRSL and Grant Shand indemnify him for any wasted costs orders (made against…

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.

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Details

Case: [2017] NZHC 3179
Decision Date: 18 December 2017

CaseChat Overview and Summary

Derek Ricky Bligh sued the Earthquake Commission and IAG New Zealand Limited in relation to damage to his house allegedly sustained in the earthquake of 4 September 2010. His claims were to have been the subject of a trial commencing on Monday, 31 October 2016. However, the trial did not proceed. Claims Resolution Service Ltd (CRSL), a litigation funder which had been funding Mr Bligh, cancelled its contract with him (“the funding contract”). As a consequence, the firm of Grant Shand Barrister and Solicitor (“Grant Shand”) ceased representing Mr Bligh. Mr Bligh did not appear in Court when the case was called. The Court entered judgment by default against him. Mr Bligh was subsequently able to have the judgment set aside. The Court ordered Mr Bligh to pay to the defendants the costs and disbursements of the setting aside application. Wasted costs have been incurred by the three parties as a result of the trial not proceeding on 31 October 2016 and judgment being entered by default. The applications before the Court were for wasted costs orders against Mr Bligh, CRSL, and Grant Shand. The Court held that, as between Mr Bligh and the defendants, Mr Bligh must accept a liability for the wasted costs occasioned by the aborted trial. The Court ordered that the plaintiff and CRSL pay to the first defendant its reasonable solicitor/client costs and disbursements incurred in relation to this proceeding in the period 28 – 31 October 2016. The Court also ordered that the plaintiff, CRSL and Grant Shand pay to the second defendant its reasonable solicitor/client costs and disbursements incurred in relation to this proceeding in the period 28 – 31 October 2016 and a sum representing 25 per cent of its reasonable solicitor/client costs and disbursements of preparation for the 31 October 2016 hearing. The Court further ordered that CRSL and Grant Shand each to indemnify the plaintiff in a sum equivalent to 40 per cent of the total sum the plaintiff is required to pay to the defendants pursuant to the costs judgment.

Orders