Brinsdon v Beazley

[2019] NZHC 808

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2017-409-000691

[2019] NZHC 808

BETWEEN

J R BRINSDON

Plaintiff

AND

G H BEAZLEY

First Defendant

VERO INSURANCE NEW ZEALAND LIMITED

Second Defendant

Hearing:

26 February 2019

Appearances:

M J Borcoski and S J Deavoll for the Plaintiff W J Hamilton for the First Defendant

A J Wakeman for the Second Defendant

Judgment:

12 April 2019

JUDGMENT OF ASSOCIATE JUDGE P J ANDREW

This judgment was delivered by me on 12 April 2019 at 2:00 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

BRINSDON v BEAZLEY & ANOR [2019] NZHC 808 [12 April 2019]

Contents

Paragraph Number

Introduction.............................................................................................................. [1]

Relevant legal principles.......................................................................................... [6]

Factual background............................................................................................... [10]

The pleaded causes of action................................................................................. [20]

Analysis and decision............................................................................................. [21]

Issue: Duty of care post-renewal of policy........................................................... [28]

Issue – postponement of limitation period 1950 on grounds of equitable

fraud..................................................................................................................... [36]

Issue – late knowledge under s 14 of the Limitation Act 2010........................... [66]

Issue – fresh cause of action.................................................................................. [73]

Conclusion.............................................................................................................. [80]

Result...................................................................................................................... [82]

Introduction

[1]                 The plaintiff, Ms Brinsdon, is the owner of a house at Rutland Street, Christchurch that was damaged in both the September 2010 and February 2011 Canterbury earthquakes.

[2]                 The first defendant, Mr Beazley, was the insurance broker who placed total sum insurance cover for the house with the  second  defendant,  Vero Insurance  New Zealand Ltd (Vero).

[3]                 The plaintiff contends that she was under-insured as a result of defective advice from Mr Beazley on inception and renewal of the policies. The damage to the plaintiff’s house as a result of the earthquakes well exceeds the total sum cover. She sues Mr Beazley in contract and tort and for breach of the Consumer Guarantees Act 1993. Vero is said to be vicariously liable for Mr Beazley’s failures.

[4]                 The pleadings were not filed until September 2017. Both defendants have brought applications to strike out all three causes of action on the grounds that each claim is limitation barred. The plaintiff accepts that the proceedings have been brought outside the primary six year limitation period. However, she contends there is arguable case:

(a)for the postponement of the limitation period under s 28(b) of the Limitation Act 1950 on the grounds of equitable fraud; and

(b)that she had late knowledge of the claim pursuant to s 14 of the Limitation Act 2010 and that her claims were filed within three years of that knowledge date (s 11(2)).

[5]                 In response, the defendants say there is no “air of reality” to the claim for postponement under s 28(b), the plaintiff having failed to discharge the persuasive burden that she carries. They further contend that the grounds for late knowledge have not been made out, that the proposed amended pleading does not disclose a reasonably arguable cause of action, and that the claims in the amended pleading would in any…