Freer v Earthquake Commission - [2024] NZHC 1346

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-409-428

[2024] NZHC 1346

BETWEEN ANDREW ROBERT FREER and LUCINDA RAE McEVEDY
Plaintiffs

AND

EARTHQUAKE COMMISSION

Defendant

Hearing: On the papers

Counsel:

G D R Shand for Plaintiffs

C J Curran and N J C Wilson for Defendant

Judgment:

27 May 2024

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

(Costs)

This judgment was delivered by me on 27 May 2024 at 3.15 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:

FREER v EARTHQUAKE COMMISSION [2024] NZHC 1346 [27 May 2024]

[1] The plaintiffs applied for leave under r 4.24 of the High Court Rules 2016 to represent owners of residential properties whose claims made to the Earthquake Commission (EQC) for increased liquefaction vulnerability (ILV) and increased flooding vulnerability (IFV) land damage under s 19 of the Earthquake Commission Act 1993 (the Act) were settled by payment on a diminution of value (DOV) basis. The application was opposed by EQC and determined by me in judgments dated 29 May 2023,1 and 14 December 2023.2

[2] In the judgment of 29 May 2023 (the first judgment), I found the plaintiffs had not identified a suitable common issue as to whether EQC’s use of DOV was in accordance with its obligations under s 19 of the Act. I adjourned the application to allow the plaintiffs a further opportunity to adequately identify a suitable common issue.

[3] The plaintiffs then filed an amended application under r 4.24. In my judgment of 14 December 2023 (the second judgment), I granted the plaintiffs leave to bring a representative proceeding but on more limited terms than had been sought.

[4] The plaintiffs applied by separate applications for leave under s 56(3) of the Senior Courts Act 2016 to appeal to the Court of Appeal from the first judgment and aspects of the second judgment. EQC applied for leave to appeal aspects of the second judgment only. Each party opposed the other’s application/s for leave to appeal.

[5] In a judgment of 24 April 2024, I granted the plaintiffs leave to appeal both judgments and EQC leave to appeal the second judgment.3 In respect of costs, I noted both parties had mixed success. My initial view was that costs should lie where they fall but if either party wished to seek costs I allowed them to apply by memorandum.4

[6] The plaintiffs have applied for costs. EQC considers costs should lie where they fall.

1      Freer v Earthquake Commission [2023] NZHC 1301.
2      Freer v Earthquake Commission [2023] NZHC 3662.
3      Freer v Earthquake Commission [2024] NZHC 912.
4      At [46].

The plaintiffs’ submissions

[7] The plaintiffs argue that they are entitled to costs because, overall, they were the successful party. This is because they say they were successful in obtaining leave to appeal on two applications whereas EQC was successful in obtaining leave to appeal on only one application.

[8] The plaintiffs argue that…

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.

Continue reading Freer v Earthquake Commission

Details

AGLC: Freer v Earthquake Commission [2024] NZHC 1346
Case: [2024] NZHC 1346
Decision Date: 27 May 2024

CaseChat Overview and Summary

The plaintiffs, Andrew Robert Freer and Lucinda Rae McEvedy, sought leave to represent property owners in a representative proceeding against the Earthquake Commission (EQC) regarding claims for increased liquefaction and flooding vulnerability. The EQC opposed the application, leading to two judgments by Associate Judge Paulsen, one granting limited leave to proceed with the representative action and the other granting both parties leave to appeal certain aspects of the judgments. The plaintiffs sought costs for their success in obtaining leave to appeal, while the EQC argued costs should lie where they fell.

The legal issues before the court were whether the plaintiffs were the successful party overall and whether the without prejudice offer made by the plaintiffs' counsel should influence the costs decision. The court had to determine if the plaintiffs' success in obtaining leave to appeal on two separate applications entitled them to costs, and if the without prejudice offer should be considered in the costs decision.

Associate Judge Paulsen concluded that the plaintiffs were not the successful party overall as both parties were equally successful and unsuccessful in their respective applications for leave to appeal. The judge noted that the plaintiffs' procedural choices should not distort the costs position. Furthermore, the judge found that the without prejudice offer did not have significant costs consequences for the plaintiffs as the court's role in granting leave to appeal was independent of any agreement between counsel. The court rejected the plaintiffs' basis for seeking costs and ruled that costs on the applications for leave to appeal should lie where they fell.

The final orders of the court were that costs on the applications for leave to appeal were to lie where they fell.

Orders