Bligh v Earthquake Commission - [2017] NZHC 995

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2013-409-001333 [2017] NZHC 995

BETWEEN
DEREK RICKY BLIGH

Plaintiff

AND

THE EARTHQUAKE COMMISSION First Defendant

IAG NEW ZEALAND LIMITED Second Defendant

Hearing: 9 May 2017

Appearances:

R Lynn for Plaintiff
N S Wood and J W Upson for First Defendant
P M Smith for Second Defendant

Judgment:

16 May 2017

JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

[1] This proceeding was brought by Mr Bligh against his insurer, IAG New Zealand Limited (IAG) and the Earthquake Commission (EQC) in respect of damage said to have been caused to his home in Waddington, Canterbury, in the sequence of earthquakes in 2010 and 2011. He applies to set aside a judgment of Clark J dated
2 November 2016 in which her Honour entered judgment for the EQC and IAG

under r 10.8 of the High Court Rules.1 EQC and IAG oppose the application.

[2] Rule 10.8 provides that if a defendant appears at a hearing, but the plaintiff does not, the defendant is entitled to judgment dismissing the proceeding, unless the defendant has admitted all or part of the claim, which is not the position in this case. In the circumstances which follow, Mr Bligh did not appear at the trial of his claim
against EQC and IAG.

1 Bligh v The Earthquake Commission [2010] NZHC 2619.

BLIGH v THE EARTHQUAKE COMMISSION and IAG NEW ZEALAND LTD [2017] NZHC 995 [16 May 2017]

[3] Mr Bligh relies on r 10.9:

Judgment following non appearance may be set aside

Any verdict or judgment obtained where one party does not appear at the trial may be set aside or varied by the court on any terms that are just if there has, or may have been, a miscarriage of justice.

[4] The Court is required to consider this application in the way directed by the

Court of Appeal in Russell v Cox,2 confirmed in Mathieson v Jones:3

The test against which an application to set aside a judgment should be considered is whether it is just in all the circumstances to set aside the judgment, and the several factors mentioned in the judgments discussed should be taken, not as rules of law, but as no more than tests by which the justice of the case is to be measured, in the context of procedural rules whose overall purpose is to secure the just disposal of litigation.

[5] Since Russell v Cox was decided the High Court has instituted a system of case management. As well, because Mr Bligh’s case was a claim in respect of damage alleged to have been caused to his home by earthquakes in the Canterbury earthquake sequence, it was managed under a specific case management scheme put in place by the Court in Christchurch for such cases. In my opinion the reference to the context of procedural rules in Russell v Cox should, in the present case, include the case management system under which this case was procedurally conducted.

[6]…

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 995
Decision Date: 16 May 2017

CaseChat Overview and Summary

This proceeding was brought by Mr Bligh against his insurer, IAG New Zealand Limited (IAG) and the Earthquake Commission (EQC) in respect of damage said to have been caused to his home in Waddington, Canterbury, in the sequence of earthquakes in 2010 and 2011. Mr Bligh applied to set aside a judgment of Clark J dated 2 November 2016 in which her Honour entered judgment for the EQC and IAG under r 10.8 of the High Court Rules. EQC and IAG opposed the application. The Court was required to consider whether it was just in all the circumstances to set aside the judgment. The test against which an application to set aside a judgment should be considered is whether it is just in all the circumstances to set aside the judgment. The Court found that there had been a miscarriage of justice and the judgment should be set aside. Costs on the application and wasted costs were reserved. A case management conference will be held in approximately six weeks.

Orders