Bligh v Earthquake Commission - [2017] NZHC 2994

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2013-409-001333 [2017] NZHC 2994

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:

4 December 2017

JUDGMENT OF ASSOCIATE JUDGE OSBORNE [on security for costs]

Introduction

[1] This proceeding was originally scheduled to have a seven-day trial commencing 31 October 2016. Now, by reason of unusual circumstances, there is a
new trial date commencing 19 February 2018 (estimated to take 10 days).

BLIGH v EARTHQUAKE COMMISSION [2017] NZHC 2994 [4 December 2017]

[2] The circumstances in which there came to be a new trial date are fully explained in a judgment of Associate Judge Matthews in which a default judgment obtained by the defendants on 1 November 2016 was set aside.1 Mr Bligh had a contract with a litigation funder, Claims Resolution Service Ltd (CRSL). His solicitor in the litigation had been Grant Shand, Barristers and Solicitors. Either shortly before or on the day of hearing, CRSL purported to cancel its contract with Mr Bligh. That led Mr Andrew Ferguson, the solicitor from Grant Shand’s firm who was acting, to seek and obtain leave to withdraw as the plaintiff’s solicitor. As a result of Mr Bligh’s non-appearance in Court, Clark J entered judgment by default for the defendants.2

[3] Mr Bligh subsequently applied for and obtained the order setting aside the default judgment.3 Associate Judge Matthews then made timetabling orders on all parties’ signalled applications for costs and the defendants’ signalled application for security for costs in relation to the freshly-pending trial.

The applications for security for costs

[4] As a matter of exigency, in this judgment I determine only the applications for security for costs. There is a distinct urgency attaching to those having regard to the new trial date.

[5] The defendants (“IAG” and “EQC”) apply for orders pursuant to r 5.45 High Court Rules that the plaintiff give security for costs in favour of each defendant in the sum of $20,000. They ask that the orders require security by 22 December 2017. The defendants apply also for orders staying the proceeding if the plaintiff does not give such security by 22 December 2017.

[6] Mr Bligh opposes the applications for security. Responsibly, he does not take issue with the appropriateness of the amount sought ($20,000 for each defendant) if security is to be granted. Nor did Mr Lynn (for Mr Bligh) submit that there ought not to be a stay of the proceeding if security, though ordered, is not provided. Further, Mr
Lynn accepted that the threshold requirement under r 5.45 – that there is reason to

1 Bligh v Earthquake Commission [2017] NZHC 995.
2 Bligh v Earthquake Commission

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 2994
Decision Date: 4 December 2017

CaseChat Overview and Summary

Derek Bligh commenced proceedings against the Earthquake Commission and IAG New Zealand Limited in relation to damage to his property caused by earthquakes. The defendants applied for security for costs, following the setting aside of a default judgment. The plaintiff opposed the applications, contending that he was impecunious, that he had a bona fide claim with reasonable prospects of success, and that any order for security would effectively deny him access to the Courts. The defendants submitted that there was a serious doubt as to whether the plaintiff’s claim would succeed, and that a refusal of the security sought would be oppressive and unjust to the defendants. The Court found that the plaintiff could provide security in the form of a mortgage, and that it was appropriate that the proceeding be stayed if the plaintiff did not provide such security. The Court ordered that the plaintiff provide a registrable mortgage security in the sum of $20,000 to each defendant, with the mortgage securities to be capable of registration but protected pending trial by caveats against the title. The Court further ordered that if the plaintiff failed to provide security as ordered, the plaintiff’s proceeding would be stayed with immediate effect. The costs of the defendants’ applications were to follow the event, and the plaintiff was to pay the costs of the application on a 2A basis together with disbursements to be fixed by the Registrar.

Orders