Bolstad v Earthquake Commission - [2019] NZHC 3283

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-201

[2019] NZHC 3283

BETWEEN
FRANCESCO AQUILA BOLSTAD

Plaintiff

AND

THE EARTHQUAKE COMMISSION

First Defendant

AND

TOWER INSURANCE LIMITED

Second Defendant

Hearing:
9 December 2019

(By way of telephone conference)

Appearances:

G Shand for Plaintiff

No appearance for First Defendant - abiding M C Harris for Second Defendant

Judgment:

12 December 2019

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 12 December 2019 at 3.00pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 12 December 2019

BOLSTAD v THE EARTHQUAKE COMMISSION [2019] NZHC 3283 [12 December 2019]

Introduction

[1] The plaintiff has applied to transfer this proceeding to the Canterbury Earthquakes Insurance Tribunal (“the Tribunal”). The application is made under s 16 of the Canterbury Earthquakes Insurance Tribunal Act 2019 (“the Act”).

[2] The first defendant, the Earthquake Commission (“EQC”), has filed a memorandum advising that it will abide the decision of the Court in respect of transfer and on that basis did not take part in the telephone conference at which the plaintiff’s application was considered.

[3] The second defendant, Tower Insurance Ltd (“Tower”), opposes the application.

[4] Tower did not suggest that the proceeding did not meet the eligibility criteria for transfer under ss 8 and 9 of the Act. The focus of the submission was on whether transfer was in the interests of justice, that being the key consideration under s 16(2)(c) of the Act.

Context

[5] This proceeding was commenced in early April 2018. At issue in the proceeding is a two story dwelling constructed around 1930. It is not in issue that the building suffered damage in the Canterbury Earthquake Sequence.

[6] In a Minute issued at the end of May 2019, Whata J set this matter down for a hearing and directed a close of pleadings date of 31 July 2019. The parties have been offered a trial date of 3 August 2020. The parties on 16 October 2019 attended a judicial settlement conference which was unfortunately unsuccessful.

[7] The parties filed a comprehensive joint memorandum for the first case management conference. The parties identified that one of the issues in the proceeding was “what natural disaster damage (if any) occurred to the house as the direct result of” the Canterbury Earthquakes.

[8] The timetable agreed for the first case management conference required the parties’ structural engineering experts to meet at the site to discuss the extent to which they agreed or disagreed about the natural disaster damage to the house and the appropriate repair strategy for that damage and to then complete a joint report in accordance with sch 4 of the High Court Rules 2016 identifying the earthquake damage to the house, the appropriate repair strategy and areas of agreement and disagreement and where there was disagreement the reasons for that. That process was then to feed into the preparation…

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: [2019] NZHC 3283
Decision Date: 12 December 2019

CaseChat Overview and Summary

In Bolstad v Earthquake Commission, the High Court of New Zealand was asked to decide whether a proceeding related to earthquake damage to a property should be transferred to the Canterbury Earthquakes Insurance Tribunal. The plaintiff, Francesco Aquila Bolstad, sought to transfer the proceeding under section 16 of the Canterbury Earthquakes Insurance Tribunal Act 2019, while the second defendant, Tower Insurance Ltd, opposed the application. The first defendant, the Earthquake Commission, chose not to participate in the hearing.

The primary legal issue before the court was whether the transfer of the proceeding to the Tribunal was in the interests of justice, as required by section 16(2)(c) of the Act. The court considered several factors in making its decision. The plaintiff argued that the Tribunal's inquisitorial function and ability to appoint its own expert could facilitate a resolution of the dispute. However, the defendants contended that the application was aimed at undermining the joint expert report process and avoiding the need to file evidence as directed by the court.

The court declined to transfer the proceeding at that time, finding that the application appeared to be aimed at defeating the joint expert reporting process and avoiding the need for the plaintiff to file his evidence. The court noted that the plaintiff had not provided any new evidence contradicting the joint expert report or a clear basis for his claim. The court also expressed doubts about whether the Tribunal would fund a further report aimed at contradicting the joint expert report. The court found that the transfer was not in the interests of justice and ordered the plaintiff to engage with the defendants to determine the timing of his briefs of evidence. The plaintiff was allowed to re-apply for transfer once his case was fully developed.

This case highlights the importance of providing a full picture of the plaintiff's claim before seeking a transfer to the Tribunal. The court found that the transfer was not in the interests of justice as it appeared to be aimed at undermining the joint expert reporting process and avoiding the need to file evidence. The court also noted that the plaintiff had not provided any new evidence contradicting the joint expert report or a clear basis for his claim.

Orders