Falloon v Earthquake Commission

[2020] NZHC 874

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV 2013-409-1333

[2020] NZHC 874

BETWEEN

G FALLOON AND R JENKINS AS

EXECUTORS OF THE ESTATE OF THE LATE DEREK RICKY BLIGH

Plaintiff

AND

THE EARTHQUAKE COMMISSION

First Defendant

IAG NEW ZEALAND LIMITED
Second Defendant

CLAIMS RESOLUTION SERVICE LIMITED

Non-Party

Hearing:

19 November 2019

19 February 2020 - further submissions received

Counsel:

K Clay and H Weston for Applicant/non-party N Wood for EQC

S Connolly for IAG

Judgment:

1 May 2020

JUDGMENT OF CULL J

Contents

Application to review............................................................................................... [1]

Background.............................................................................................................. [5]

Leave to apply out of time..................................................................................... [23]

Approach on review............................................................................................... [30]

Issues....................................................................................................................... [32]

Whether joint and several liability applies to CRS as a non-party................... [33]

Rule 14.14............................................................................................................ [35]

The parties’ positions........................................................................................... [38]
The decision under review................................................................................... [42]

Analysis................................................................................................................ [47]

BLIGH v THE EARTHQUAKE COMMISSION [2020] NZHC 874 [1 May 2020].

(a)Mr Bligh was contractually bound to accept advice................................ [49]

(b)Wasted costs orders................................................................................... [56]

(c)Apportionment of liability.......................................................................... [62]

Conclusion........................................................................................................... [66]

Was there a causal connection between the incurred costs and

CRS’s involvement?............................................................................................... [69]
Should all of the claimed experts’ expenses have been recovered

against CRS?.......................................................................................................... [82]

What is a fair apportionment of liability for costs as between the

plaintiff and CRS?................................................................................................. [89]

Conclusion.............................................................................................................. [95]

Application to review

[1]                  This is an application to review an Associate Judge’s award of joint and several costs against a non-party litigation funder, arising out of a claimant’s unsuccessful civil claim for earthquake damage.1

[2]                  Claims Resolution Service Ltd (CRS), the litigation funder and non-party to the proceeding, applies to the Court for review of  the  judgment  of  Associate  Judge Lester, in which he ordered CRS to pay the Earthquake Commission (EQC) and IAG New Zealand Ltd (IAG) non-party costs, on a joint and several basis with the plaintiff in the sums of $123,900 to EQC and $81,479 to IAG.2 This was ordered together with 2B costs on EQC and IAG’s successful applications for non-party costs.3

[3]                  In an earlier ruling from Associate Judge Osborne, CRS was ordered to pay wasted costs to both EQC and IAG as a result of an aborted trial on 31 October 2016.4 In relation to EQC’s wasted costs, Associate Judge Lester quantified the wasted costs in the sum of $30,709 plus $2,207 in disbursements, and ordered that liability should be on a joint and several basis with the plaintiff.5 Joint and several liability costs were also awarded against CRS and the plaintiff for EQC’s costs for the wasted costs

1      Bligh v Earthquake Commission [2019] NZHC 2236 (Decision Under Review).

2      The review is brought under High Court Rules 2016, r 2.3. See also Decision Under Review, above n 1, at [139] and [151].

3 At [160].

4      Bligh v Earthquake Commission [2017] NZHC 3179 (Wasted Costs Decision) at [151(a)] and [151(c)].

5      Decision Under Review, above n 1, at [22]-[23]. While IAG was also awarded wasted costs in the Wasted Costs…