Fraser v Tower Insurance Limited - [2019] NZHC 2768

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2016-409-954

[2019] NZHC 2768

BETWEEN MANDY JOAN FRASER as Executive of the Estate of Violet Fraser
Plaintiff

AND

THE EARTHQUAKE COMMISSION

First Defendant (discontinued)

AND

TOWER INSURANCE LIMITED

Second Defendant

Hearing: 14 October 2019

Appearances:

M J Fraser (self-represented) and J Bernie T J Mackenzie as Amicus

M C Harris and J M Alexander for Second Defendant

Judgment:

30 October 2019

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 30 October 2019 at 3.00pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 30 October 2019

FRASER v TOWER INSURANCE LIMITED [2019] NZHC 2768 [30 October 2019]

[1] The plaintiff, Ms Fraser, applied to have this proceeding transferred to the Canterbury Earthquakes Insurance Tribunal (“the Tribunal”) pursuant to s 16 of the Canterbury Earthquakes Insurance Tribunal Act 2019 (“the Act”).

[2] Counsel for Tower Insurance Ltd (“Tower”) advised by memorandum that while the transfer was not opposed, Tower submitted that it was in the interests of justice that the transfer be deferred until after an outstanding application for wasted costs made by Tower had been resolved.

[3] Tower sought that its costs application be resolved prior to transfer lest the fact of transfer meant that its outstanding application for wasted costs could not be resolved.

[4] By the time the transfer application was made, Ms Fraser was self-represented. That led me to appoint Timothy Mackenzie of Christchurch, Barrister, to act as contradictor in relation to the merits of the wasted costs application and to act as amicus in respect of the broader question of whether, following the transfer of a proceeding from this Court to the Tribunal, this Court retained the ability to deal with costs issues relating to steps taken in this Court.

[5] Counsel filed detailed submissions ahead of the hearing and I am grateful for their assistance.

[6] I also record that Ms Fraser attended the hearing on 14 October 2019. She briefly addressed the Court at my invitation towards the end of the hearing and I will refer to the points she made below.

Do grounds exist for a wasted costs order?

[7] Tower made its application for wasted costs some time ago by way of a memorandum dated 9 May 2018.

[8] The application, in general terms, asserted that the plaintiff having changed lawyers, at that stage three times, having abandoned expert reports after they had been served, and after those now disengaged engineers had liaised with experts instructed for the plaintiff, caused wasted costs to Tower.

[9] I asked Mr Mackenzie as contradictor on this issue whether there were any arguments that could be raised on behalf of Ms Fraser as to why liability for a wasted costs order did not exist. Mr Mackenzie advised that he did not think there were any reasonable arguments and I am in agreement with that view.

[10] At this juncture, I mention Ms Fraser’s…

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 2768
Decision Date: 30 October 2019

CaseChat Overview and Summary

Mandy Joan Fraser, as the executrix of Violet Fraser's estate, applied to transfer her insurance claim against Tower Insurance Limited to the Canterbury Earthquakes Insurance Tribunal. Tower Insurance Limited did not oppose the transfer but suggested that it should be deferred until an application for wasted costs was resolved. Fraser was self-represented, and Timothy Mackenzie was appointed as contradictor to advise on the wasted costs application and amicus on the broader question of whether the High Court retains jurisdiction over costs issues after a proceeding is transferred to the Tribunal.

The court found that Fraser was liable for wasted costs due to her changing engineers and solicitors, which led to additional costs for Tower. The court allowed a reduced rate for the memoranda and dismissed the claim for additional wasted costs but reserved the decision on wasted experts' costs. The court also ruled that it retains jurisdiction over costs issues arising before the transfer to the Tribunal.

The court transferred the proceeding to the Tribunal and made an order for wasted costs against Fraser. The application for wasted experts' costs was adjourned, and Tower agreed not to recover the costs until Fraser's insurance claim outcome was known.

Orders