Bligh v Earthquake Commission - [2017] NZHC 2964

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2013-409-001333 [2017] NZHC 2964

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

(a non-party)

P J Napier for Grant Shand (a non-party)

Judgment:

30 November 2017

JUDGMENT OF ASSOCIATE JUDGE OSBORNE [on costs]

Introduction

[1] In this proceeding, Derek Bligh sues his insurer, IAG New Zealand Ltd (IAG), and the Earthquake Commission (EQC) in respect of damage said to have been caused
in the Canterbury Earthquake Sequence.

BLIGH v EARTHQUAKE COMMISSION [2017] NZHC 2964 [30 November 2017]

[2] An eight-day trial was set down to commence on 31 October 2016. Clark J entered judgment for EQC and IAG under r 10.8 High Court Rules which entitles a defendant to judgment where the plaintiff does not appear.1

[3] Mr Bligh applied under r 10.9 for an order setting aside the judgment. IAG and EQC opposed the application. Following a hearing, Associate Judge Matthews granted the application and set aside the judgment.2

[4] The Court reserved the costs of the application and reserved issues relating to matters of wasted costs arising from the aborted trial.

[5] Costs issues arose not only as between the defendants and the plaintiff but also as between all those three parties and two non-parties being Mr Bligh’s solicitor up to the trial (Grant Shand) and Mr Bligh’s litigation funder, Claims Resolution Service Ltd.

[6] I heard a number of ensuing applications last week.

[7] This judgment focuses solely on the costs of the setting aside application as between the defendants and the plaintiff. The Court’s judgment on other matters remains reserved.

The defendants’ applications

[8] The defendants apply for their costs on the setting aside application.

[9] Mr Bligh accepts that the defendants are entitled to such costs. In his separate application, he seeks contribution or indemnity from the non-parties, a matter which will be dealt with in a judgment to follow.

[10] For costs purposes, this is a Category 2 proceeding. The defendants apply for costs on a 2B basis.3 A 2B approach is appropriate having regard to the nature of the

1      Bligh v Earthquake Commission [2016] NZHC 2619.
2      Bligh v Earthquake Commission [2017] NZHC 995.
3      High Court Rules, Category 2 under r 14.3(1) and band B under r 14.5(2).

setting aside application, the issues raised and the hearing. Mr Lynn (for Mr Bligh)

responsibly did not suggest otherwise.

Justification for the award of costs

[11] Counsel recognised that, in the circumstances of this case, Mr Bligh’s success in having the default judgment set aside should not lead to adoption of the primary principle whereby costs follow the event.4

[12] The significant feature of this case is that Mr Bligh through…

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.

Keep reading for free

Create a free CaseChat account to read Bligh v Earthquake Commission and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] NZHC 2964
Decision Date: 30 November 2017

CaseChat Overview and Summary

Derek Bligh, the plaintiff, initiated legal proceedings against the Earthquake Commission (EQC) and IAG New Zealand Limited (IAG), his insurer, in relation to damages caused by the Canterbury Earthquake Sequence. The case was set for an eight-day trial beginning on 31 October 2016, but the plaintiff did not appear, resulting in a default judgment in favour of the defendants. Subsequently, Mr Bligh applied to set aside this default judgment, which was granted by Associate Judge Matthews. The court reserved the costs of the application and other related issues, including potential wasted costs from the aborted trial. This judgment specifically addresses the costs of the setting aside application between the defendants and the plaintiff, while other matters remain reserved for future judgments.

The primary legal issue before the court was whether the defendants were entitled to costs for the setting aside application, given that Mr Bligh had successfully had the default judgment set aside. The court considered the nature of the application, which was seen as an indulgence obtained by Mr Bligh, and whether the usual principle of costs following the event should apply. The court referenced the judgment in Cunningham v Butterfield, where the Court of Appeal emphasised that the facts of each case should be analysed to determine the appropriate costs decision. The court determined that the circumstances of this case warranted an award of costs in favour of the defendants.

In its reasoning, the court found that the defendants were entitled to costs for the setting aside application. The court awarded costs on a 2B basis, considering the nature of the application, the issues raised, and the hearing. The court rejected the primary principle of costs following the event due to the unique circumstances of Mr Bligh obtaining an indulgence. The court also addressed the timing of payment of costs, deciding that the order should come into effect immediately given Mr Bligh's primary liability. The court further certified reasonable costs of travel and accommodation for counsel for each defendant but did not certify costs for second counsel.

The court ordered that the plaintiff, Derek Bligh, pay to each defendant costs on a 2B basis together with disbursements to be fixed by the Registrar. This judgment focused solely on the costs of the setting aside application between the defendants and the plaintiff, with other matters reserved for future determination.

Orders