Earthquake Commission v Whiting

Case [2015] NZCA 144


IN THE COURT OF APPEAL OF NEW ZEALAND

CA459/2014
[2015] NZCA 144

BETWEEN

EARTHQUAKE COMMISSION
Appellant

AND

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.

____________________________________________________________________

REASONS OF THE COURT

(Given by White J)

Table of Contents

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

  1. 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]

  2. 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.

  3. 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.

  4. The second respondents (the first respondents’ private insurers) have taken no part in the appeals.

  5. EQC acknowledges that as the appeals are against discretionary…

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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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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