J E WHITING, K J JONES AND R S PEEBLES First Respondents
IAG NEW ZEALAND LIMITED Second Respondent
CA708/2014
BETWEEN
EARTHQUAKE COMMISSION Appellant
AND
W VAN LIMBURG First Respondent
TOWER INSURANCE LIMITED Second Respondent
CA709/2014
BETWEEN
EARTHQUAKE COMMISSION Appellant
AND
S R RYDE AND C A RYDE First Respondents
IAG NEW ZEALAND LIMITED Second Respondent
Hearing:
11 March 2015
Court:
White, Fogarty and Dobson JJ
Counsel:
P R Jagose and N S Wood for Appellant D A Webb and M R Bendall for First Respondents in CA459/2014 N R Campbell QC and I R Shennan for First Respondents in CA708/2014 and CA709/2014 No appearances for Second Respondents
Judgment:
4 May 2015 at 10.30 am
JUDGMENT OF THE COURT
AThe appeals and the cross-appeals are dismissed.
BIn each appeal the appellant must pay the first respondents’ costs for a standard appeal on a band A basis with usual disbursements. We certify for second counsel.
CThe first respondents in CA708/2014 and CA709/2014 must pay the appellant’s costs on their cross-appeals for a standard appeal on a band A basis with usual disbursements. We certify for second counsel.
Para No Introduction [1] Background [8] The Whiting claim [25] The Ryde claim [43] The van Limburg claim [53] Submissions [59] Costs on discontinuance [62] Application here [73] Cross-appeals [79] Result [84]
Introduction
These three appeals by the Earthquake Commission (EQC) challenge three High Court decisions awarding costs to the respective first respondents when, as plaintiffs, they discontinued their High Court proceedings against EQC arising out of the Canterbury earthquakes.[1]
EQC submits that the respective High Court Judges erred in their costs decisions by making significant errors of principle and fact when finding that the plaintiffs had rebutted the presumption under r 15.23 of the High Court Rules which provides that:
Unless the defendant otherwise agrees or the court otherwise orders, a plaintiff who discontinues a proceeding against a defendant must pay costs to the defendant of and incidental to the proceeding up to and including the discontinuance.
The first respondents in the second appeal (Mr van Limburg) and the third appeal (Mr and Mrs Ryde) also cross-appeal against the decisions of Kós J in their cases awarding them only 50 per cent of their costs in the High Court. They claim they should have been awarded 100 per cent of their costs. Although the first respondents in the first appeal (Ms Whiting and Messrs Jones and Peebles) were also awarded only 50 per cent of their costs, they have not cross-appealed.
The second respondents (the first respondents’ private insurers) have taken no part in the appeals.
EQC acknowledges that as the appeals are against discretionary…
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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AGLC
Earthquake Commission v Whiting [2015] NZCA 144
Case
[2015] NZCA 144
Decision Date
CaseChat Overview and Summary
The Earthquake Commission (EQC) has appealed against three High Court decisions awarding costs to the respective first respondents (the plaintiffs) when they discontinued their High Court proceedings against EQC arising out of the Canterbury earthquakes. EQC submits that the respective High Court Judges erred in their costs decisions by making significant errors of principle and fact when finding that the plaintiffs had rebutted the presumption under r 15.23 of the High Court Rules which provides that a plaintiff who discontinues a proceeding against a defendant must pay costs to the defendant of and incidental to the proceeding up to and including the discontinuance. The first respondents in the second appeal (Mr van Limburg) and the third appeal (Mr and Mrs Ryde) also cross-appeal against the decisions of Kós J in their cases awarding them only 50 per cent of their costs in the High Court. They claim they should have been awarded 100 per cent of their costs. The second respondents (the first respondents' private insurers) have taken no part in the appeals. EQC acknowledges that as the appeals are against discretionary decisions it must persuade us that there was an error of law or principle in the High Court decisions, irrelevant considerations were taken into account, relevant considerations were not taken into account or the decisions were plainly wrong. The Court held that the appeals and cross-appeals were dismissed and that in each appeal EQC must pay the first respondents' costs for a standard appeal on a band A basis with usual disbursements. The first respondents in CA708/2014 and CA709/2014 must pay EQC's costs on their cross-appeals for a standard appeal on a band A basis with usual disbursements.